Abstract: While artificial intelligence is promoting the intelligent transformation of human society, the criminal risk of infringement upon human legal interests derived from its uncertainty (automaticity) is by no means a fake and alarmist “problem” fabricated out of thin air, but a “real problem” that needs to be taken seriously. Regarding the criminal risk and objective harm of artificial intelligence being abused to commit crimes, the algorithm designers, product manufacturers and users behind the artificial intelligence should be investigated separately for criminal responsibilities in accordance with the existing principles of criminal liability fixation, specific behaviors and subjective forms of crime. There are many misunderstandings of the argumentation basis and the argument path of the affirmative imputation scheme, which gives the status of the subject of criminal responsibility to artificial agents that deviate from human control and infringes upon the legal interests. The practice of regulating criminal risk of artificial intelligence with criminal penalties lacks suitability. China should draw on the “Science and Technology Social Defense Theory” and make up for the limitations of the culpability requirement of the criminal penalty regulation of criminal risk of artificial intelligence by establishing a security measure mechanism. Under this mechanism, judicial organs, on the basis of professional technical opinions, apply physical security measures with technical hazard elimination measures as its content to artificial intelligence entities that seriously infringe human interests, so as to preserve necessary legal space for the development of artificial intelligence technology, and achieve full protection of human beings.

Keywords:artificial intelligence; criminal risk; criminal imputation; criminal liability subject; property security sanctions

Author:Liu Renwen, a research fellow at and head of the Criminal Law Department of CASS Law Institute; Cao Bo, a postdoctoral researcher CASS Law Institute and an associate professor at the School of Law of Guizhou University.

Source: 8 (2021) Jiangxi Social Sciences.