The Research On The Crime Of Refusing To Fulfill The Obligation Of Information Network Security Management

In recent years,with the rise of the network technology,application and popularization,the frequency of many network security problems also grow.Especially the "Internet plus" era,subjectivity of the network service provider is more prominent,plays a leading role in the core network in the world.However,a variety of network services to bring convenience to our lives at the same time,because the network service provider does not fulfill the obligations of the network security issues caused by more and more.At present,the main reason for these problems is that part of the network service providers do not consciously fulfill the laws and regulations of the information network security management obligations.In view of this situation,in order to further strengthen the network service provider behavior,People's Republic of China in November 1,2015 the implementation of the "criminal law amendment(nine)" specially set up information network security management does not fulfill the obligations of the crime,will easily exist in the network service provider refuses to perform the obligations of management information network security behavior into the criminal law regulation scope.However,how to operate this new crime in judicial practice,how to identify the scientific,such as illegal information,a large number of spread and refused to correct,theoretical and practical circles are controversial.This paper attempts to study the possible problem and practice in legislation on the crime in question,in order to clarify the theoretical disputes and judicial practice to resolve the ambiguity,and put forward some views.The paper is divided into the following sections:Firstly,the introduction part describes the research background and significance;then summarizes the related research status at home and abroad,and that the foreign research on the regulation of the network service provider is the civil liability,the theory circle of our country on this new crime research is less,and there are some problems and shortcomings;the two research methods of literature research and comparison the analysis of this crime,has carried on the innovation,analyzes thecurrent advantages and shortcomings in the theory,and proposed to amend the relevant legislation,improve the supporting measures,in order to balance theory and practice.The first part mainly describes the basic theory of the crime of refusing to fulfill the obligation of network security management.This paper expounds the connotation of "information","information security" and "management obligation".At the same time,an overview of network security and network security management system of the obligation of the definition,sources,existing network service providers and regulatory authorities and the implementation of obligations in the dispute,in order to clarify the rationality of the crime of crime.The second part focuses on the elements of the crime of refusing to fulfill the obligation of information network security management.According to the existing research results,the dispute mainly concentrate on the subjective and objective of the crime as well as the definition of the network service provider,the dispute is mainly concentrated in the subjective and objective aspects,and has not yet formed a conclusion.In the objective aspect,this paper argues that,for "refusing to correct"behavior should be objectively correct;"ordered" approach should be made in writing,oral order can not be used as performance basis;"illegal information" shall include illegal information related to criminal law,administrative law,civil law,"the mass";refer to the previous regulations "illegal information is read 5000 times or 500 times to be forwarded to identify.In the subjective aspect,most scholars think that only the intention,while some scholars think that it should also include fault;this article in favor of the latter.The third part focuses on the identification of the crime of refusing to fulfill the obligation of information network security management.First of all,"refused to correct" behavior is usually the network service provider in the received notification ordered is not correct after the behavior,therefore,the essential difference between the crime and the general violations is "refused to correct" whether to have serious consequences;at the same time,ordered not defective or improper;"correct" must have the objective possibility.Secondly,this crime is a pure sin.Finally,define the boundaries between the crime and the crime of illegal use of information network,the crime of helping the crime of information network crime,the crime of infringement of personal information of citizens.The fourth part,based on the previous study,points out that there are some problems such as the scope of the administrative obligation,the regulatory authorities and the relevant concepts.Aiming at these problems in the legislation of criminal law and the relevant measures to put forward their own ideas: issued judicial interpretation scope,duty of supervision department and related concepts are defined;proposals for the network service provider refuses to perform the obligation of information network security management behavior through the establishment of qualification penalty and ban punishment;perfection for refusing to fulfill the obligations of the crime information network security management facilities,mainly from two aspects,namely the electronic network forensics network service provider network services and the establishment of the government supervision,social supervision and self-discipline supervision system.