Study On The Inculpation And Restriction Of Internet Neutral Assistant Behavior

The development of Network technology facilitates our daily life,meanwhile the number of people who use the Internet to commit crimes has increased,this phenomenon brings the Internet Service Provider's responsibility issues because it always act as a "the middle man",the Internet Service Provider(ISP)is a typical Internet neutral assistant behavior,it's assistant behavior can be used to commit Internet crimes in objective,the assistant have foreseeability in subjective,this paper intends to discuss the inculpation of this type assistant behavior.This paper includes four parts,through the elaboration of these four parts,to realize the reasonable limitation of the inculpation of Internet neutral assistant behavior,details are as follows:The first part,draws Internet neutral assistant behavior from the concept and characteristics of the traditional neutral assistant behavior,points out the peculiarity of the Internet neutral assistant behavior.According to the attitude to Internet neutral assistant behavior from academic circle,and combines the punishment basis of traditional accomplice to find out the suitable punishment basis for Internet neutral assistant behavior,realize a reasonable punishment for Internet neutral assistant behavior.The second part,the research on the inculpation of Internet neutral assistant behavior can't be separated from the theory of the neutral assistant behavior,through the pectination of the doctrines in Germany,Japan,Anglo-American and China,analyzes the rationality of these doctrines.In view of the particularity of Internet neutral assistant behavior,the author agrees to use improved eclecticism to identify the nature of these behaviors,at first using the objective imputation theory to do a substantial judgement of social harmfulness of these behaviors,and then according to whether there is a clear cognition in the assistant's subjective aspect,from objective to subjective can limit the scope of Internet neutral assistant behavior can be fined.The third part,ISP as the main implementer of Internet neutral assistant behavior,there are different opinions about the scope and classification of ISP,the author agrees to understand it from broad sense and classify it to Internet Content Provider(ICP),Intemet Access Provider(IAP)and Internet Platform Provider(IPP).The ICP is the publisher of Internet information,they can control the information on Internet,there always don't have controversy to identify responsibility,but ICP and IAP usually provide neutral technical supports,so there is a general restriction on its inculpation.The last part,the interpretation of current laws,the need for the modesty of criminal and the application of objective imputation theory realize the reasonable limitation of the inculpation of Internet neutral assistant behavior.First,the author divides the current legal provisions which contains the responsibility of ISP into compulsory regulations,"fully aware" regulations and Negative list regulations,by reasonable interpretation of legal provisions,there is no sign of increasing punishment for Internet neutral assistant behavior,conforming to the academic trend of restricting the inculpation of Internet neutral assistant behavior;The Second,the modesty and restraint principle of criminal law requests the last resort of criminal law and the economy of criminal law,providing the policy basis of restricting the inculpation of Internet neutral assistant behavior.Last,through the study on the core essentials and reasonable of the objective imputation theory,providing the theory basis of restricting the inculpation of Internet neutral assistant behavior.