| Internetis the most energetic area nowadays,the fast development of which has brought us new opportunities,along with new challenges.How to motivate Internet's positive effect,guarantee the efficient function of Internet's innovation,while minimize the safety risk brought by the development of Internet,is one of the problems that we need to solve.In the Internet environment,the Service Providers hasevidenttechnical superiority and controlling status,compared with other Internet participating subjects.In order to protect the Internet safety and maintain the Internet order,most countries and regions around the world have chosen to guide and standardize the Internet service behavior through laws,statutes,regulations and industry autonomous guidance.Since criminal law is the last line of defense to protect the society among all the rules and regulations,whether it shall regulate the Internet service behavior and how to regulate,is a question that criminal theory has to be confronted with and answer.Based on the background of the Internet age and from a technical changing-forward-looking perspective,this paper argues 1)the necessity and boundary of the criminal law intervention to the Internet service area,2)how to build and perfect a criminal law regulation system whose value orientation is to effectively balance the public interests and private interests,and the control of crime risk and the protection of Internet innovation,and 3)the judicial regulation boundary balancing the appropriateness of criminal law intervention and the legitimacy of Internet service.The first chapter defined the connotation and denotation of Service Providers from the theoretical level,and discussed the necessity and boundary of the criminal law interventionto the Internet service area.Service Providers,means natural person or units who could provide Internet access service,Internet storage,server colocation,communication transmission,advertising promotion,payment settlement and any relevant Internet service.Based on whether making the transmitting decision on the contents,products and service through its own net or server,Service Providers could be divided into information and content providers(“ICP”)and Internet agent service providers(“IASP”).Furthermore,based on the controlling degrees of the contents,products and service through IASP' net or server,IASP could be divided into platform service providers,information location service providers and Internet access service providers.Criminal law intervention to the Internet service area has its necessity.On one hand,Service Providers is located in the commanding height in the Internet environment and plays replaceable and significant roles in guaranteeing the Internet safety and maintaining the Internet order.No matter from the perspective of preventing cybercrime,or disposingcybercrime,or prosecutingcybercrime,Service Providers shall undertake the obligations for security management of information networks appropriate to its Internet service behavior.The result of social harm caused by the nonfulfillment of Service Providers' obligations for security management of information networks is the reason of criminal law intervention to the Internet service area.On the other hand,the technologic power of information networks and the innovational development of Internet service business model provide Service Providers with new methods to abuse information net technology to obtain illegal interest.However,the traditional criminal law regulation models had some defects and deficiency to regulate the information net technology abuse of Service Providers.In order to effectively response to the challenges brought by the Service Providers' information net technology abuseto the traditional criminal law evaluation system,criminal law shall reasonably intervene the Internet service area,and adjust and perfect the current criminal law evaluation system based on the latest changes of cybercrime.In the criminal law theory circle,some scholars have an opinion that it's not necessary for criminal law to intervene the Internet service area in accordance to the theory of neutral assistingbehavior.However,no matter from the perspective of the application precondition of the theory of neutral assistingbehavior,or the fundamental purpose of the its establishment,it is not the theoretical obstacle for the criminal law to intervene the Internet service area.We all understand that the criminal law intervention has its boundary.When intervening the internet service area,the public interests shall be maintained,and at the same time,individual's interests shall also be taken into account and the individual's privacy and freedom of speech shall not be infringed.Besides,Service Providers are the dominant players during the network technology innovation,as well as the motivator during the state's economic transformation and upgrading.Because of the significant innovation value of Internet service,the criminal law intervention to the Internet service area shall be oriented by balancing the control of crime risk and the maintenance of the Internet innovation.The criminal law shall protect the legal interests of the market participants from the network technology abuse acts,and leave enough room for the system from the technical change and market development forward-looking perspective.The second chapterelaborates the development history of the criminal law system regulating the Service Providers' crime,and offers perfection suggestions to the problems existed through comparative study method.Along with the Internet service industry's establishment,development and maturity,the criminal law system regulating the Service Providers' crime acts also experienced developing process from a point to a surface and from fragment to a system.As a whole,the criminal law system regulating the Service Providers' crime acts has some defects and deficiency in legislation idea and legislation technology: in legislation idea,the necessityof criminal law intervention has been overly emphasized,while the boundary of the intervention has been neglected;in legislation technology,the severity of the criminal law regulationhas been overly emphasized,while the operability of the regulation has been neglected.The United States and some countries and regions in the European Union developed internet social applications long before us,and have accumulated rich experience in regard to the laws regulating Internet service behaviors.The pros and cons gained in their experience could be referred to build and perfect our criminal law system regulating the Service Providers' crime acts.So far,most countries and regions around the world have promulgated specific laws and statutes to regulate internet service behaviors.After comparative study,we could find that to some extent,those specific laws and status have similarity in the legislation idea and technology.Firstly,the principle of exemption with the expectation of imputation has been generally accepted.Secondly,in order to establish regulating model,the legislator used the function of Internet service behavior as a standard to set different liability rules for different internet service subjects.Lastly,when getting exempted from the liability,the Service Providers shall perform specific acting obligations,but initiatively monitoring the internet users or pursuing their illegal acts shall not be set as general obligations for them.The difference of laws regulating Internet service behaviors among countries and regions over the world is their regulating areas.Through referring to abroad legislation examples and experience of laws regulating Internet service behaviors,we could perfect our criminal law system of regulating Service Providers' crime acts from both the legislation idea and technology.In the legislation idea,the idea of technology balance,interests balance and globalization shall be established;in legislation technology,the constitutive elements of the crime of refusing to perform obligations for security management of information networksand the crime of supporting cybercrime shall be adjusted.The third chapter discussed the specific application of the crime of refusing to perform obligations for security management of information networks and the crime of supporting cybercrime.The crime of refusing to perform obligations for security management of information networks is a kind of impure crime of omission.The Service Providers' non-performance of theobligations for security management of information networks is the first condition to the establishment of the crime.The obligations for security management of information networks includes the obligation to dispose illegal information,the obligation to protect users' personal information,the obligation to storage and disclose date,and otherobligations for security management of information networks.The obligation to dispose illegal information means that when Service Providers discover the existence of illegal information,they shall immediately stop the transmission of those information,use technology to avoid the spread of those information and save the record to report to the authorities.The obligation to dispose illegal information is usually undertaken by platform service providers and information location service providers.The obligation to protect users' personal information means that ISPs shall use encryption and identification technologies to protect the integrity and safety of the users' personal information saved during their daily operation.The obligation to protect users' information is usually undertaken by IASP.The obligation to storage date means that Service Providers shall save data accepted and disposed during a period of time.The obligation to disclose date means that when asked and demanded by authorities,Service Providers shall provide with and disclose saved date information honestly.The obligation to storage and disclose data shall be applied to all the Internet service subjects.The possibility for the Service Providers to perform their obligations for security management of information networksis the second condition to the establishment of the crime,which could be divided into technology possibility and expectation possibility.Technology possibility is the objective standard decide whether Service Providers have performed their obligation,while expectation possibility is the subjective standard.Expectation possibility is based on and further deduce from technology possibility.The possibility to avoid harmful result is the third condition to the establishment of the crime.Whether the non-performance of the Service Providers' obligation is replaceable during the developing process from the crime acts to the harmful result is the rightful standard to decide the possibility to avoid harmful result.According to Article 286 a of Criminal Law,whenan Service Providerfails to perform the obligations for security management of information networks prescribed by laws and administrative regulations and refuses to make correction as ordered by the regulatory department,while concurrently constitutes another crime,the Service Providershall be convicted and punished in accordance with the provisions on heavier punishment for such crime.In juridical practice,Service Providers refusing to perform their obligation while concurrently constitute the crime of supporting cybercrime could be convicted differently based on the theory of condemn emphasis;Service Providers refusing to perform their obligation while concurrently constitute other impurity negative crime,shall be convicted in accordance with the crime of refusing to perform obligations for security management of information networks.The forth chapter discussed the specific application of the crime of supporting cybercrime from the judicial level.“Having clear knowledge that others make use of information network to commit crimes” is subjective condition to the establishment of the crime of supporting cybercrime.The concept of “having clear knowledge” exists both in the general provisions and specific provision of the Criminal Law.However,there's difference between the nature of the concepts in the general provisions and the specific provisions.The former means that having clear knowledge of the harmful result,while the latter means that having clear knowledge of the subject aimed at,but both the “clear knowledge” include the knowledge of certainty and possibility.There are two methods to decide the existence of clear knowledge in accordance with the specific provisions of Criminal Law: judicial provement and judicial presumption.When discussing the crime of supporting cybercrime,the crime in the concept of “having clear knowledge that others make use of information network to commit crimes” means crime acts according with constitutive element of the crime stipulated by the specific provisions of the Criminal Law.Under any of the following circumstances,if Service Providers could not have reasonable explanation,the “clear knowledge” could be presumed: 1)still offering internet service after notified by supervising authority;2)having abnormal charging standard of the service;3)circumventinginvestigation on purpose or sending information to the criminal suspects during the investigation;and 4)other situation under which clear knowledge could be assumed.When more than half the Internet service provided by the Service Providers have been used for others to commit crimes,the Service Providers could be assumed that having clear knowledge that others make use of information network to commit crimes.Offering technical support,like offering Internet access,Internet storage,server colocation,communication transmission,advertising promotion and payment settlement,is the objective condition to the establishment of the crime of supporting cybercrime.Whether the Service Providers' technical support having raised risks forbidden by laws is the subjective imputative condition to the establishment of the the crime of supporting cybercrime.Causal relationship is the factual basis for the Service Providers to undertake criminal law liability,while the legitimacy of their service is the regulative basis for them to be exempted.According to Article 287 a of Criminal Law,when an Service Provideroffers technical support with the clear knowledge that others make use of information network to commit crimes,while concurrently constitutes another crime,the Service Provider shall be convicted and punished in accordance with the provisions on heavier punishment for such crime.Firstly,offering technical suppport while concurrently constituting another crime is one act,not several acts.Secondly,the laws' chosen for judging Service Providersoffering technical suppport while concurrently constituting another crime shall be based on the severity of punishment.Lastly,those punishment shall be severer than the the punishment to the crime of Article 287 a of Criminal Law. |
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