Criminal Law Assessment of Acts Committed Through Algorithms to Benefit Others in Automated Decision-Making

Yongbo Shang

doi:10.54691/w24wfj42

Authors

Yongbo Shang Beijing Normal University, School of Law, Beijing 100875, China

DOI:

https://doi.org/10.54691/w24wfj42

Keywords:

Automated decision-making; Seeking benefits for others; Negligent omission; Oversight fault.

Abstract

As algorithms become deeply embedded in public administration, traditional forms of corruption have undergone a transformation, and the elements of official misconduct face interpretive challenges in automated decision-making scenarios. Based on the manner in which the perpetrator intervenes in the algorithm and the content of their knowledge, acts of using algorithms to secure benefits for others can be categorized into acts of commission, acts of omission, and acts of negligence. In terms of legal characterization, the creation of a biased algorithm and its deployment constitute the commencement of a crime; omission may also satisfy the element of securing benefits for others, but only if the perpetrator exercises control over the algorithm; negligence constitutes a crime of dereliction of duty only when it results in significant losses. Regarding attribution of liability, the focal point should shift from control over the act to control over the algorithm: for intentional crimes, the liability of principal offenders and accomplices is determined based on volitional control; for negligent crimes, supervisory and management responsibilities are allocated based on breaches of duty, and the scope of punishment is limited by the principle of reliance.

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