The Categorization Boundary Of Criminal Liability Of Internet Service Conduct

The thriving of internet business provided developing space for criminal conducts alongside brought the convince to people in daily life.Whether the conduct of internet service should be regulated as criminality is a focus in the theoretical realm.Criminal Law Amendment Ninth prescribed the crime of refusing the obligation of protecting information safety and the crime of assisting in criminal activities of internet crimes,thus taking the conduct of internet service into the regulation of criminal law.The main theories related to the above question are neutral-assistance and complicity-principal.Comparing with previous researches,this paper talked about the scope of criminal liability about the two crimes combining with remarkable case for defining the scope by the means of theory explanation,comparison of domestic and foreign situation,and categorization analysis.As the technique-oriented conduct,categorizaton of internet service should break the traditional scope.This paper categorized conducts basing on internet technique,then provided the judging standard of criminal liability and the formal basis for criminal explanation.This paper contained four chapters:first chapter came up with a new method of discussing the criminal liability-analysis of categorizationdrawed on the experience of Germany,this paper classified the conducts into four categories:content service,storage service,cache service,network access and information transmission.Second chapter wrote about the constituting boundary of the crime of refusing the obligation of protecting information safety.Combing with the case of Kuaibo,this paper analysed the obligation origin of managing information safety,supervision institution,notifying ways and constitutive components.The third chapter talked about the categorization boundary of criminal liability.Firstly,this paper based on the theory of complicity-principals,and denied the pervious theory of sentencing standard.Secondly,this paper restricted the constitutive standard of neutral assistance conduct,and proposed a compromise for it with the basis of objective theory;thirdly,this paper proposed the restriction of the constitutive standard for internet service with the elements of criminality risk,the capability of meeting the obligation,public welfare and whether-realise-or not respectively from different types.Last,this paper harmonized the conflict between this crime and the theory of complicity and proposed the new perspective of essential explanation of constitutive components basing on the theory of principal-subordinate.The fourth chapter definited the distinction of the two crimes.Although two crimes both contained omission element of refusing the obligation,analyzing from objective and subjective constitutive components can distinguish different crimes better.