Criminal Liability On Omission Of Internet Service Provider

While the development of the Internet has greatly promoted society progress,cybercrime seem to be more serious.The network has not only breed new forms of crime,but also injects new vitality into traditional types of crime.The present laws and regulations of supervision over the cybercrime are still inefficient,makes the current criminal legislation has been unable to meet the demand of regulation of this kind of crime.Moreover,the feature of cybercrime will challenge the new legislation."Amendment(IX)to the Criminal Law of the People's Republic of China" criminalize Internet Service Provider's omission,specifically "Where a network service provider fails 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",it may be sentenced.That provides a new legal basis for regulating the cybercrime.To emphasize an important point,however,we should make a further study of whether this legislation can fit in the circumstance of cybercrime.This thesis focus on the crime of refusing to perform the obligations for security management of information networks.I put forward my own views about the rationality of the legislation and judicial application of this crime.This article is divided into two parts mainly.Part one explains the rationality of the legislation,includes chapter 1 and chapter 2.Chapter 1 talks about the topic that why Internet Service Provider can be considered as a special criminal subject.The reason why I occupy some pages to the issue is that the mentioned crime aims at sizing the cybercrime which isn't committed by internet service provider.Then I found the criminology value of Internet Service Provider,respectively from the current situation of the development of cybercrime,the Internet Service Provider's function orientation and the concept of the network technology demonstration.Chapter 2 is trying to answer such a question why the legislator chooses the omission theory for setting the Internet service provider's criminal responsibility.In this passage,I used the neutral conducts'concept to describe the feature of Internet service provider's daily behavior,it doesn't mean that the punishment justification of such behavior is discussed in the theory of accomplice.By the way of forward inference,I compared two methods of imputation of cybercrime,and made a conclusion that choosing the omission theory for setting the Internet service provider's criminal responsibility was more reasonable.Part two focuses on the application of the mentioned crime,by analyzing the clause.This part includes chapter 3 and chapter 4.Chapter 3 defines the obligations for security management of information networks.Although this crime states the duty of action,it needs to replenish by means of perfecting laws and administrative regulations.I made a material limitation of obligations through the functional classification of Internet Service Providers and stated criminal result.Chapter 4 analyses "refuse to take corrective actions when being asked to" in depth.At the same time,I put forward a critical opinion on this clause.In my view,it will weaken the independent status(in criminal law)of internet service provider;moreover,disables the legislative purpose of spurring Internet Service Provider on to perform its obligation.