Research On Criminal Regulation Of Internet Service Provider

Being an integral part of daily life nowadays,internet has been more and more used in crimes such as cyber insult and defamation,the infringement of intellectual rights,the dissemination of obscene articles,etc.because of its virtuality,anonymity,privacy and boundlessness.The 28 th and 29 th article of Amendment Nine to Chinese Criminal Law set the failure of ISP to perform the obligation of supervision on the internet and the help behavior in cyber crimes as independent charges.However,the articles have been under sharp controversies in both theoretical and practical fields and need more detailed rules in judicial practices.With the aim to find an appropriate way to clarify the criminal liability of ISP,the thesis analyses the ways of criminal regulations from the aspect of neutral business,joint offence and negative crimes.Besides,based on the discussion of the potential problems in current regulation of the criminal laws and judicial interpretations,the thesis provides suggestions on the criminal prosecution of ISP.The thesis is divided into three parts: the necessity of criminal prosecution of ISP,the difficulties in criminal regulations and the suggestions on present regulations in criminal law.The first part lists the basic concepts of ISP and the present criminal rules on it,consisting of the identification and classification of ISP,the necessity of criminal regulation on ISP and the current rules and judgments in China and abroad.When the internet services are combined with illegal or criminal behaviors,ISP harms the interests protected by law and is liable to the harm,so it's necessary to make criminal regulations on ISP.The second part analyses the problems and disagreements of criminal regulations on ISP in three sections.It first solves the problem whether the ISP is punishable as the provider of neutral business.ISP is guilty when their provision of service has a substantial impact on the crime and their behavior is beyond is daily service scope or they fail to fulfill their obligations.Secondly,it discusses the difficulties of joint offence.Without enough and clear criminal intent liaison or criminal intent liaison,ISP cannot be fully punished under traditional theory of joint offence.And the different guilty intent between ISP and its clients makes it hard to prosecute ISP even under partial accomplice theory.The third section discusses the criminal regulations on ISP under the theory of negative crimes,from the source of ISP's obligation,the possibility for ISP to perform the obligations and the possibility to avoid the crime consequences.The third part focuses on the current criminal rules of the 28 th and the 29 th article of Amendment Nine,analyzing the potential problems in theoretical field and judicial practices and gives suggestions on criminal regulations to ISP.The author suggests that the 28 th article of Amendment Nine be interpreted in a restricted way,and the 29 th article should be judged in a more deliberate way.Besides,the obligation of ISP also needs a more clear regulation in the laws of other fields and there should be more means to protect the right of cyber citizens.