Research On The Criminal Law' Legal Obligation Of Internet Service Provider

With the development of the Internet,there have been many cases of cybercrime.As the main body of network,network service provider has the unshirkable responsibility of network security management.In order to better regulate the behavior of network service providers,the amendment of criminal law(9)has added the crime of non-performance of the security management of information network.Network service providers are not responsible for their crimes.However,due to the ambiguous nature of legal classification of network service providers and statutory obligations,and these regulations are relatively fragmented and confusing,this has led to judges arguing against illegal cases of network service providers in judicial practice.There is a great deal of discretion,and the case judgments are not uniform.Concomitantly,controversy often has been aroused.Based on the analysis and classification of the network service provider,the subject of refusal to fulfill the obligations of information network security management,:this article aims to introduce and the obligation of information network security management combined with the experience of relevant laws and regulations outside the domain,through case analysis the rules of recognition of obligations of information network security management from the forward and reverse direction are summarized,with a view to providing reference to judicial theory and practice.This article mainly focuses on the following five parts:The first part is the positioning of network service providers in criminal law.To study the crime of omission as a source of obligations,we must first clarify the subject of non-action crimes,that is,what the network service provider is.Combining the definition of the two viewpoints of the academic community on network service providers,we try to give a definition of network service providers,and on the basis of which the network service providers can be divided into network access service providers,networks Platform service providers,web content service providers,and web link service providers.Finally,through analysis and elaboration,only the last three network service providers are in accordance with the main body of our research,to fix the position of the network service provider in criminal law.The second part is the statutory source of obligations for network service providers.On the basis of acknowledging that the obligation to refuse to fulfill the obligations of information network security management obligations should be statutory obligations,the statutory obligations of China's network service providers should be summarized and integrated,followed by an extraterritorial inspection of the statutory obligations of network service providers,including the Common Law and the Civil Law.The relevant provisions of the legal system and the civil law system sum up the relevant legislation outside the domain,and finally draw the conclusion of comparative research.The third part is the classification research of the network service provider as an obligation,which is also the core content of this paper.First of all,it analyzes the type of criminal responsibility that our country's network service providers bear,and combines the previous two parts of the study,it comes to a conclusion that due to different technical characteristics different network service providers provide different network services,so the obligations undertaken are also different,And the paper is also combined with the typical case studies on the obligations of network service providers.The fourth part is a deterrent for as obligation cognizance rules,first of all determined by technology are emphatically analyzed two typical cases neutral obligations as a deterrent for recognition rules and obligations as a deterrent for results to avoid possibility of rules.The fifth part is the convergence of the application of justice and relevant laws.So far,there have been no case of penalties for refusing to fulfill the obligations of information network security management,and most of them have imposed civil penalties and administrative penalties on internet service providers,.Especially after the issuance of the "Network Security Law" to regulate Internet service providers,it is increasingly stringent regulated,.To realize the final guarantee function of the criminal law,it is necessary to properly handle the relationship between the general illegal acts of the network service provider,civil torts,and criminal offences in practice to protect the network for a healthy development of internet space.As a new type of network entity,network service providers set specific network security management obligations and provide sufficient normative and theoretical guidance for investigating criminal liability of network service providers.Type analysis of network service providers is required to make the network service providers more specific in their criminal liability and facilitate the delineation of each other.With fully attached importance to the status of statutory obligations of network service providers,and on the basis of accurately determining the obligations of service providers,this article sets specific obligations to optimize the principle of imputation.At present,we have not seen much discussion about the positioning of the function types of network service providers in the theoretical discussion of the obligations of network service providers.Without such a typological orientation,the identification path of network service providers is bound to fail to be effectively implemented,and the accuracy and scientific nature of the obligation determination will be affected.The deeper connotation of network service providers as an obligation type analysis is that they fully consider the different technical characteristics and control possibilities of different types of network service providers' main types.Only in this way can we form a corresponding obligation to different network service providers.A reasonable expectation of the level of responsibility.In the foreseeable future,more and more problems concerning the identification of criminal liability of network service providers will emerge.We are faced with the dual predicament of legislative redundancy and theoretical gaps.To study on typelization of the obligation of network service providers is our only way to deal with this problem.