The Analysis Of Penalty For Network Neutral Helping Behaviour

Network service provider is an important common manager of cyberspace in our daily lives,with a far-reaching impact on the committing of cybercrimes.In front of frequent cybercrimes in China,if measures of expanding the punishment scope and degree for punishable neutral network business activities are taken blindly,it will not only be inclined to the full punishment of all neutral network business activities,but also take the accomplices as principal offenders,and even break through the punishment logic of the modesty principle in China's criminal law.Actually,such punishment logic violates the principle of rule of law and principle of crime and punishment,and will impact the network operation and development to a certain extent.In recent century,the inculpation of neutral helping behavior has always been a hot topic in the theory and practice field of Germany,and it is mainly affirmed from the perspective of objective imputation.As for the affirmation of punishment of neutral activities conducted by network service provider in Japan and Taiwan of China,there is a trend of limits on the scope of punishment.In order to achieve the desire of protecting the legitimate rights and interests of the victims and maintaining the normal operation of the network service providers,the neutral behavior of network service providers can be punished only when the network service providers objectively create a risk not allowed by the law in the daily professional behavior,subjectively“know”others'criminal behavior and uphold the attitude of hoping the crime occur.Otherwise,the tolerance of different types of network service providers should be treated differently,and the current situation of legislation and judicial practice in China should be further identified.With the discussion of Qvod Play case as a starting point and the inculpation of the neutral helping behavior on the Internet as the center,issues like how network service providers shall undertake the criminal liability and what's the range of the undertaking of criminal liability,etc.are further explored through interpreting the second item of the 287^th article of the Ninth Amendment to Criminal Law,to provide certain references to prevent excessive expansion of the scope of criminal penalties for network service providers in practice.This article mainly consists of five parts.In part one,the origin and status of neutral helping behavior on the Internet are illustrated.To study the inculpation of neutral helping behavior on the Internet,how the neutral helping behavior is proposed and what's the development process shall be clarified in the first place.In order to draw the attention from the practice field to the neutral helping behavior on the Internet,breakthroughs shall be made from the theoretical researches of the neutral helping behavior.Secondly,the cases happened in reality are cited to illustrate the seriousness of the problem of neutral network conducts in China and illustrate the importance of the topics discussed in this paper.In part two,attitudes towards the neutral helping behavior on the Internet in domestic and foreign theory field are stated,to show the theoretical views of the author.Although all theoretical views show different stands on the restriction degree and scope of the punishment,there are mainly three theories,including the subjective,objective and neutral ones.But relatively consistent views on the restriction of the punishment of neutral helping behavior on the Internet to a certain extent have been reached.This part aims to analyze the merits and shortcomings of different standpoints,so as to state the view of this paper.Part three mainly talks about the issue of how to judge the inculpation of neutral helping behavior on the Internet.According to the analysis of risk tolerance,objective illegal elements conformity is studied.By combining the affirmation of subjective“knowing”and practice,the degree of incriminating neutral helping behavior on the Internet is judged.In the fourth part,by citing the typical cases of neutral network conducts,the author elaborates their penalty one by one.Through listing three common types of neutral helping behavior on the Internet in daily lives,whether each behavior reaches the degree of punishment as the accessory is analyzed,and meanwhile,the criminal responsibility of P2P network service provider is studied with emphasis,so as to explore the inculpation of the three behaviors.Part five illustrates the way how to restrain the incrimination and punishment of neutral helping behavior on the Internet.Based on the above four parts,relevant opinions and countermeasures of restraining the punishment scope of neutral helping behavior on the Internet are put forward by combining the analysis of stipulation on accomplice and rethink of the second item of the 287^th article of the Ninth Amendment to Criminal Law,to prevent the behavior of excessively criticizing the network service providers.