非法获取他人算力的刑法规制路径探析

Exploring the Path of Criminal Law for Illegal Acquisition of Others’ Computing Power

摘要: 算力作为“新引擎”，成为推动数字经济发展的关键动力。伴随着算力产业的极速发展，以恶意挖矿为代表的非法获取他人算力行为频发。当前，司法实践选择以计算机类犯罪作为规制路径，存在法益侵害评价不全面、受害人损失填补不能、罪刑不均的缺陷。数字时代的算力相当于电气时代的电力，两者均属于“无体物”但具备价值性、管理可能性与交易可能性，可扩张解释为新型财物。在财产犯罪视野下，非法获取他人算力行为应适用盗窃罪、职务侵占罪，侦查实验法为算力损失计算难题提供新思路。

Abstract: As a “new engine”, arithmetic power has become a key driving force for the development of the digital economy. Along with the rapid development of arithmetic industry, the illegal act of acquiring others’ arithmetic power represented by malicious mining frequently occurs. At present, judicial practice chooses computer crime as the regulatory path, there is a legal benefit infringement evaluation is not comprehensive; the victim cannot fill the loss, uneven crime and punishment defects. The computing power in the digital era is equivalent to the electricity in the electrical era, both of which are “incorporeal” but have value, management possibility and transaction possibility, and can be interpreted as a new type of property. Under the view of property crime, the crime of theft and misappropriation should be applied to the illegal acquisition of others’ computing power, and the experimental method of investigation provides new ideas for the difficult calculation of computing power loss.