About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

5 Info. & Comm. Tech. L. 5 (1996)

handle is hein.journals/infctel5 and id is 1 raw text is: Information & Communications Technology Law, Vol. 5, No. 1, 1996 Controlling Computer Crime in Germany SIGMUND P. MARTIN Philipps-U.niversitit Marburg, Institut filr Veifahrensrecht, Savignyhaus, Universitatsstrasse 6, D-35037 Marburg, Germany ABSTRAct The main means employed to fight growing computer misuse in Germany has been to invoke the use of criminal law. This article details the relevant provisions of substantive German criminal law and discusses the emerging problems in criminal procedure and in the practice of prosecuting computer crime. The term 'computer crime' and its meaning in criminal law and legal theory are also described in greater detail. The approach adopted by the German legislature to fight computer crime, which is character- ized by using very complex and special statutes, enacted parallel to existing and less complex traditional statutes is criticized. This article argues that within the vast field of computer crime, two types of offences should be differentiated. The first group comprises offences which are accidentally committed by using a computer, while the second group consists of crimes that structurally did not exist before. It is argued that in respect of this second category of 'real computer crime'--and in light of the emerging problems in criminal procedure-a new paradigm of information law is needed. The problem In Germany, criminal law is the basic legal tool employed to fight growing computer misuse. This is true, both with regard to legislative initiatives, and with regard to enforcing the law in practice. Special provisions to deal with computer crimes were created in 1986 with the enactment of the 'Second Act to Combat Economic Crime'.' This amendment, which essentially created some new provisions in substantive criminal law, constituted computer crime as a special form of crime. The first cases appeared in the German Police Criminal Statistics2 in 1987, with roughly 3000 cases. The latest available figures from the same statistics show about 21 000 cases in 1994. Obviously, this increase is largely due to the general increase of computer use in daily life. By the same measure, computers are also used more and more for criminal acts. Another major reason for the increase in the number of cases stems from the widespread practice of German lawyers to 'free ride' the resources of the police and the public prosecutor. To prevent clients from spending a lot of money in private law suits, they advise them to accuse the other party formally of a crime first. When such a complaint is filed, the prosecutor, in most cases, is obliged to start investigations.3 If the guilty party is finally convicted of an offence, the ruling in the criminal case makes it highly likely that the injured party will also succeed in the ensuing private law suit. Even if the prosecutor fails to bring the case to a criminal court, the investigations undertaken by the prosecutor and the police will be useful for the injured party. The investigations may produce useful information, and will, in any case, put pressure on the other party. 1360-0834/96/010005-24 @ 1996 Journals Oxford Ltd 5

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most