| With the rapid development of the Internet,which is accompanied by the frequent occurrence of criminal acts,such as infringement of copyright,privacy,dissemination of obscene articles and so on.The occurrence and judgment of QVOD Case,not only aroused the wide attention in the society,but also caused great controversy in criminal theory circles and judicial practice circles.On the basis of combing controversial views,with a deeply research on the act of perpetrating and neutral help behavior of Internet service provider,the paper puts forward the model of criminal responsibility of Internet service provider.Except introduction and conclusion,this article is divided into four sections.The first section is the interpretation on the dispute of the QVOD Case’ judicial conviction.From the public broadcast of this case trial,it has become the central issue.Besides,academic circles are disputing some issues identified in this case.From the perspective of the QVOD Case and its first instance verdict,the first part interprets the subjective aspects of the parties,act of perpetrating and application of technical neutrality of the QVOD Case.The second section is the definition of the act of perpetrating of Internet service provider.Act of perpetrating is the basic concept in the theory of criminal law.The paper analyzes indirect offenders,the subjective elements of act of perpetrating,obligation and the problem of equal value,the parties’ behavior of the QVOD Case is classified into three categories,that is,the behavior of providing technology,the behavior of providing content and the behavior of supervision,and it constitutes the non-typical criminal omission of crime of spreading obscene articles for the purpose of profit.When it comes to the responsibility of the Internet service provider,we should adhere to the principle of unity of subjectivity and objectivity and the principle of limitation of liability.The third section is the definition of the neutral help behavior of Internet service provider.The neutral help behavior has the characteristics of "neutrality" and "daily",and it is different from the act of perpetrating which has direct infringement for legal interest,therefore,it must handle carefully with the definition of criminal responsibility of the punishable neutral help behavior,it should analyze from four aspects,that is,whether to create or increase the risk of not being allowed,whether it has social equivalence or professional equivalence,to measure of interest and to investigate the subjective aspect of the parties.However,it is difficult to absolve guilt with the principle of technical neutrality from these four aspects.The forth section is the definition of Internet service providers’ criminal responsibility.The definition of criminal responsibility is the theory goal of discussing criminal behavior.Based on the analysis of the definition of criminal responsibility of the different types of Internet service provider’s act of perpetrating and neutral help behavior,the models of the criminal responsibility of Internet service provider are summarized in three forms,that is,independent crime,complicity liability and helping behavior is identified as a principal offender. |
