The Research On The Fulfillment Of Internet Service Provider's Criminal Duty Of Act

Internet Service Provider's management obligations of Information network security are pushed to the forefront of public opinion,by the first Internet case of “QVOD” in 2016 and “The crime of refusing to fulfill the obligation of information network security management” added in the Criminal Law Amendment(9).The crime of refusing to fulfill the obligation of information network security management raised the information network security management obligation to criminal obligation,which demands the criminal punishment based on the clear and reasonable criminal norms.However,the scope of the Internet Service Provider's management obligations of Information network security isn't to be clearly defined,coupled with the absence of judicial interpretation,it will inevitably lead to judicial confusion.The crime of refusing to fulfill the obligation of information network security management is a typical crime of omission which has always been an important topic of the study of criminal law theory.But,the current study mainly focused on the source,content,existence and existence basis of the crime of the impure omission and the relationship between the fulfillment of criminal duty of act and sentencing is rarely studied.In the crime of omission,however,whether the obligor should fulfill the obligations,whether to perform,how to perform,and perform adequately is the key to decide whether the crime of omission was established.Based on the above reasons,this article takes the "QVOD case" as an example.First of all,confirm the internet service provider's concept and the corresponding criminal information network security management duty.And on this basis,analysis the internet service provider criminal responsibility of fulfillment criminal duty to act.With a view to the construction of the judgment standard of the fulfillment criminal duty to act,in order to solve the problem of the judicial application on The crime of refusing to fulfill the obligation of information network security management and provide reference for perfecting the nonferrous crime theory.The full text more than 4.5 million words,is divided into the following three parts:Part I: Definition of Internet Service Provider and its obligations.The Internet Service provider in China's Criminal Law refers to refers to all provide intermediary services and content services on the external network,and has the ability to take preventive measures of the units and individuals,including the Internet Content Provider and the On-line Service Provider.The obligations of Internet Service Providers in China criminal as a result mainly from China's information network security-related laws and administrative regulations,including security obligations,information confidentiality obligations,reasonable examination obligations,notice-delete obligation and assist in investigation obligations.And due to the distance of contact with the network information,the criminal obligations have subtle differences among with the On-line Service Provider and Internet Content Provider.It is generally believed that the On-line Service Provider only to be blamed that it doesn't fulfill notice-delete obligation.Because it could not contact the network information directly;However,the Internet Content Providers need to be undertake a comprehensive review obligations within a reasonable range,due to the principle "who provides,who is responsible for ".Part II: The judgment of the fulfillment of Internet Service Provider's Criminal duty of act.Based on the substantial performance for criminal obligation,the Internet service provider behaviors which do not fulfill the criminal act in the judicial practice are divided into three categories which are non-performance(including the false performance),part of the non-performance,and construct the formal standard.The time when Internet Service Provider doesn't fulfill the criminal obligations after ordered by supervision department is determined by the Criminal Law Amendment(9).It accord with the formal standard.Thus achieving the construction of double standards which about fulfillment Internet Service Provider's criminal duty of act.The possibility of fulfillment obligations as the premise of the duty,lack of the possibility of fulfillment obligations will obstruct liability.Therefore,it is necessary to examine carefully,to prevent fall in the trap that is “false” of without the obligation to fulfill the possibility.Part III: Criminal liability of Internet Service Provider as failure to perform.The juridical practice should be cautious about the Internet Service Provider fail to fulfill the criminal obligation.It is necessary to make a specific analysis of the essence of crime,and make responsibility allotment correctly when the Internet Service Provider fails to fulfill obligations.At the same time should also pay attention exemption of failure to fulfillment obligations,when there is obligation conflict,cognition error which can obstruct liability."Regulatory department ordered" is also provide a space to fellowship in crime between the Internet Service Provider and regulators.If they reach an agreement,the regulatory authorities do not make an order deliberately,it must exist the possibility of fellowship in crime.How to criminate and mete punishment is worth further study.If the Internet Service Provider fails to perform the criminal obligation,it will also have the possibility of constituting other crimes.At the moment,according to imaginative joiner of offenses,choose heavily penalized.