(Approved by the Judicial Committee of the Supreme People's Court on December 29, 2020)

　　Key words Criminal/Crime of illegal control of computer information system/crime of damaging computer information system/using other technical means/modifying and adding data/Trojan horse program

　　Points of judgment

　　1.By embedding a Trojan horse program，Unauthorized access to the web server control，Then modify and increase the data of computer information system，Uploading web link codes to relevant computer information systems，It should be regarded as the act of "using other technical means" to illegally control the computer information system in the second paragraph of Article 285 of the Criminal Law。

　　2.By modifying, adding computer information system data，Illegal control of the computer information system，However, it does not cause substantial damage to system functions or failure to operate normally，It should not be regarded as the crime of damaging the computer information system，In accordance with the provisions of the second paragraph of Article 285 of the Criminal Law，It should be recognized as a crime of illegal control of computer information systems。

　　Relevant law

　　Criminal Law of the People's Republic of China, Article 285, paragraphs 1 and 2

　　Basic case

　　Since July 2017，The defendants Zhang Junjie, Peng Linglong, Zhu Dong and Jiang Yuhao had conspired in advance，To earn money for advertising on gambling websites，Room 902, Building B, Trillion Apartment in Kuala Lumpur, Malaysia，Cooperate with each other，After searching and screening the target server with protection vulnerability，Implant Trojans (backdoors) into the target server for control，Then use "kitchen knife" and other software to link the Trojan，Obtain permissions to browse, add, delete, and modify the target server in the background，Static web pages with gambling keywords added and automatic redirection set，Upload to the target server，Improve the chance of gambling website ads being hit by search engines。As of the end of September 2017, the defendants Zhang Junjie, Peng Linglong, Zhu Dong, and Jiang Yuhao linked to a total of 113 target servers implanted with Trojan programs, some of which were also implanted with advertising pages containing gambling keywords。After the public security organs will defendants Zhang Junjie, Peng Linglong, Zhu Dong, Jiang Yuhao arrested to the case。The public prosecution office charged four people with destroying computer information systems。The defendants Zhang Junjie, Peng Linglong, Zhu Dong, Jiang Yuhao and their defenders all admitted the main facts of the charges in the trial.Defendants Zhang Junjie, Peng Linglong, Zhu Dong and their defenders put forward，The actions of each defendant were merely intrusions or unlawful control of the target server，nondestructive，It should be characterized as the crime of illegally intruding into computer information system or illegally controlling computer information system，Does not constitute the crime of damaging computer information system。

　　verdict

　　On July 29, 2019, the Gulou District People's Court of Nanjing, Jiangsu Province made a (2018) Su 0106 No. 487 criminal judgment: 1. The defendant Zhang Junjie committed the crime of illegally controlling computer information systems and was sentenced to five years and six months in prison and fined RMB 50,000 yuan。The defendant Peng Linglong, guilty of illegally controlling computer information systems, was sentenced to fixed-term imprisonment of five years and three months and fined RMB 50,000 yuan。The defendant Zhu Dong, guilty of illegally controlling computer information systems, was sentenced to five years in prison and fined 40,000 yuan。Defendant Jiang Yuhao, guilty of the crime of illegally controlling computer information systems, was sentenced to fixed-term imprisonment of two years and six months and fined 20,000 yuan。After the verdict of the first instance, the defendant Jiang Yuhao appealed on the grounds that the sentence of the first instance was too heavy, and his defense requested that the defendant Jiang Yuhao be suspended。Nanjing Intermediate People's Court of Jiangsu Province made (2019) Su 01 Verdict No. 768 on September 16, 2019: The appeal was rejected and the original sentence was upheld。

　　Reason for judgment

　　The effective judgment of the court held that the defendants Zhang Junjie, Peng Linglong, Zhu Dong and Jiang Yuhao jointly violated the provisions of the state and carried out illegal control of the computer information system in China, and the circumstances were particularly serious, and their actions had constituted the crime of illegal control of the computer information system and were joint crimes。Nanjing Gulou District People's Procuratorate accused the defendants Zhang Junjie, Peng Linglong, Zhu Dong and Jiang Yuhao of committing crimes against computer information systems, the facts are clear, the evidence is true and sufficient, but it is improper to charge the crime of destroying computer information systems。经查，The defendants Zhang Junjie, Peng Linglong, Zhu Dong and Jiang Yuhao modified and increased the violation of the data of the target server，But it did not cause substantial damage to the function of the information system，Or it doesn't work properly，There is also no addition or deletion of valuable data in the information system，Its behavior does not belong to the crime of destroying the computer information system to delete, modify or increase the data stored, processed or transmitted in the computer information system，It should be regarded as the crime of illegal control of computer information system。Some defendants and defenders put forward the same qualitative defense and defense opinions and adopted them。As for the appellant Jiang Yuhao's appeal of "excessive sentence" and the defense's defense opinion of announcing a suspended sentence, after investigation, the appellant and other defendants linked to a total of 113 target servers implanted with the Trojan program, which is particularly serious。According to the facts of the crime and the circumstances of the appellant's crime, the court of first instance reduced the punishment of the appellant, and the sentence was appropriate and balanced with the sentence of other defendants。Considering the nature of Appellant's crime, its consequences and its social harm, it is not appropriate to apply probation to appellant。Therefore, the reasons for appeal and defense opinions are not accepted。

　　(Effective judges and judges: Wang Bin, Huang Xia, Li Tao)