◆The application of law should closely follow the pace of economic and social development. The reform of electronic licenses is a governance model adopted by the state to adapt to the characteristics of data and information dissemination in the information age. It is widely used due to the convenience and effectiveness of electronic licenses.
◆ Whether a general electronic format license can become a criminal object must be judged according to its actual use, that is, only forging or altering electronic format licenses and using them for production and business activities or the daily management activities of state organs based on the public credit of the licenses.
With the in-depth advancement of "Internet + government services", many important certificates that once existed in physical form have become increasingly electronic.
According to reports, Jiangsu Province has now achieved full coverage of electronic transportation licenses, and Zhejiang Province has successively launched more than 290 types of electronic licenses. On the Zhejiang government service network integrated platform "Zheli Office", the number of electronic license applications has exceeded 53 million open.
The "Opinions of the General Office of the State Council on Accelerating the Promotion of the Expanded Application Fields of Electronic Certificates and the National Interoperability and Mutual Recognition" put forward, "Before the end of 2022, the electronic certificate sharing service system of the national integrated government service platform shall be basically established, the electronic certificate issuing mechanism shall be established and perfect, and enterprises shall The electronic certificates and certificates commonly used by the masses are basically electronically produced, issued and applied simultaneously with the physical certificates, and the standards are unified, interoperable and mutually recognized across the country... By 2025, the rules and regulations of the application system of electronic certificates will be more complete, and the application fields will be more extensive, which will further facilitate enterprises. work with the masses.”
Along with it, crimes against various electronic licenses have also emerged in large numbers, such as forging and altering electronic formats of "Business Licenses" and "Food Business Licenses" obtained through the review of online food ordering platforms such as "Meituan" and "Eleme". Online business qualifications, or use image editing software to forge the "Business License for Individual Industrial and Commercial Households" in electronic format for online application for POS machines, etc.
There are disputes in the theoretical and practical circles as to whether such forged and altered electronic format certificates can be recognized as "documents" stipulated in Article 280 of the Criminal Law.
There is a view that the certificate in electronic format has the same meaning and content as the original document, and its nominee is the nominee of the original document. Based on the development of modern information technology and the needs of efficient social interaction, the electronic format certificate as a supporting document has almost the same meaning as the original document. The social function and credit of the people belong to the criminal objects of forgery and alteration.
There are also views that the electronic format certificate is essentially a copy, except that it has the same content as the original, and is still independent of the original. Essence - The fraudulent use of the identity of the personality between the producer and the name.
The certificate in electronic format is only a means of proving the existence and content of the original document, not the object of the crime of forging badges in the current criminal law. Taking it as the object of crime is beyond the scope of strict interpretation of the criminal law and is contrary to the principle of statutory crime and punishment.
The author believes that it should be comprehensively reviewed from the perspective of maintaining the authority of the state to issue licenses, public credit and social management order from the perspective of development.
First of all, there is a practical need to forge or alter electronic format certificates for punishment.
The application of law should closely follow the pace of economic and social development. The reform of electronic licenses is a governance model adopted by the state to adapt to the characteristics of data and information dissemination in the information age. It is widely used due to the convenience and effectiveness of electronic licenses.
According to the different production and management subjects, electronic format licenses can be divided into "electronic licenses" certified and managed by the state and electronic forms of paper licenses, that is, general electronic format licenses: the former is issued and managed by authoritative departments, and uses official anti-counterfeiting technology and other risks. Prevention and control measures have the same legal effect as paper certificates; the latter does not have the authority and security of "electronic certificates", and the production subject and file format are not specific, and are still copies in essence.
Under the circumstance that "electronic licenses" are gradually being rolled out but have not yet achieved full coverage, for the purpose of maintaining the public credit of licenses and social management order, it is advisable to include general electronic format licenses into the governance category.
With the popularization of "electronic licenses", there will be fewer and fewer occasions where electronic licenses are used in social management activities, and the basis for debate on whether they can be used as criminal objects will be reduced until they disappear.
Secondly, there is a certain practical basis for forging and altering electronic format licenses to be punished.
General theory believes that the evaluation of electronic format certificates as "documents" regulated by Article 280 of the Criminal Law is an expansionary interpretation. Judging from relevant judicial interpretations and previous precedents, there are many interpretations that break through the single interpretation of the criminal object and expand the interpretation. For example, on June 21, 1999, the Legal Policy Research Office of the Supreme People's Procuratorate issued the "Reply on Whether the Purchase and Sale of Forged State Organ Documents Constitutes a Crime", which clearly included the purchase and sale of forged state agency documents as the target of the crackdown.
In practice, forgery and alteration of certificates in electronic format generally adopt the method of “overprinting”, that is, the perpetrator makes copies and photocopies after tampering with the photocopies of the real certificates, and finally saves them in electronic formats such as pictures and PDFs, or uses picture editing software. By means of network technology such as the real electronic certificate or the electronic certificate template, it can be altered.
The author reviewed the relevant judgments on the Judgment Documents Online and found that many places in the country have criminalized forgery and alteration of qualification certificates in electronic format, which also shows that this view has a greater degree of practical recognition.
Finally, in the practice of judicial case handling, attention should be paid to maintaining the modesty of criminal law.
Criminal law has the finality of legal application. As the final guarantee for the validity of the entire legal norm system, it protects public and important interests. Only civil and administrative means are not sufficient to achieve the purpose of protection. Penalties will be considered.
Therefore, whether a general electronic format license can become a criminal object must be judged in light of its actual use, that is, only forging or altering electronic format licenses and using them for production and business activities or the daily management activities of state organs based on the public credit of the licenses.
If you forge or alter a general electronic format certificate for entertainment purposes only, it should not be treated as a crime. All land should be treated as a crime, otherwise it will violate the modesty of criminal law.
(Author: Dong Jun, Kang Yun Unit: People's Procuratorate of Shunyi District, Beijing)