On The Crime Of Refusing To Perform The Obligation Of Information Network Security Management

In 2015,China's Criminal Law added the crime of refusing to perform the obligation of information network security management.It is a legal response to the current high incidence of cybercrime and the governance of cyberspace order.The addition of this crime establishes the Network co-governance mode.On the basis of the existing "responsible responsibility" and "accomplice responsibility",the"network platform responsibility" was added for the first time.The original intention of this crime is good,but this crime has certain difficulties in the application of judicial practice,and the application rate is extremely low.As of the end of 2018,in the cases announced by the China Judgment Paper Network,the number of cases convicted and punishable by this crime is only 2.There are two reasons:on the one hand,there are indeed ambiguities in the provisions of this law,and on the other hand,there are many controversies in the academic circles about the establishment of this crime and the identification of the constituent elements.Therefore,this article mainly combs the provisions of this crime from a theoretical perspective,mainly replying to the following topics:First,what is the reasonable basis for the establishment of this crime?Is it the responsibility of the offender or the act of helping the offender?Second,how to identify the source and boundary of the network order security management obligations?How is the concept of a network service provider refined?Network service providers such as access,storage,and search engines have different ability to control information.Do they assume network security management obligations without distinction?In addition,does the "order"procedure has a necessity?Third,in the subjective constituent elements,the subjective blame mentality of this crime is intentional or negligent?The answers to the above questions are related to the collection of evidence and the standard of proof for criminal prosecution in the judiciary.The combing of the above questions will help to clarify the specific standards of this crime in judicial practice and break the embarrassing situation of extremely low applicability.The first part of this article mainly answers the legitimacy of this crime.This crime has the necessity of independent conviction,and belongs to the network platform responsibility of the network service provider independently,not the helper of other crimes.On the one hand,network service providers are an indispensable part of the operation of Internet functions,and an important condition for the realization of criminal risks of infringement of information rights.Their unique dominance in cyberspace requires them to assume responsibility for preventing criminal risks in the field of dominance.On the other hand,the network service providers do not fulfill their network management obligations,such behaviors are inherently legally invasive,and they contribute a certain amount of causal power to the implementation of other crimes.Although civil law and administrative law have already stipulated this,it is not enough to curb the development of cybercrime.In order to realize the effective connection between pre-law and criminal law,it is necessary to impose criminal obligations on network service providers.The second part and the fourth part of this paper mainly answer the questions about the constituent elements of this crime:in terms of objective constituent elements,first,the boundary of the obligations should be jointly confirmed by the guarantor theory and and legal provisions.Because this crime has the dual characteristics of true inaction and non-authenticity,it is also necessary to make a substantive judgment on whether the network service provider forms a supervisory obligation on the source of danger.Second,the concept of "network service provider"is necessary to learn from the foreign legislation for functional division.Because this crime regulates the criminal responsibility for not fulfilling the regulatory obligation,the network content provider should first be excluded,and the network server is divided into providing aisle services,providing storage services and providing search for technology standards.There are three types of engine services.Third,the "order"procedure has the necessity of existence.It not only provides institutional guarantees for restricting excessive punishment,but also provides important support for reasonable conviction.It can divide administrative responsibility and criminal responsibility,and exclude the application of neutral help behavior theory and subjective negligence theory.In terms of subjective constituent elements,the actor has an understanding of the nature of the act of inaction and the serious consequences that may result,but they refuse to correct it after being ordered by the regulatory authorities,the actor's occurrence of serious results should be identified as a pursuit of mentality,or at least a laissez-faire mentality.therefore,this paper believes that the subjective mentality should be identified as an intentional mentality.The third part of this paper mainly discusses the criminal form of this crime:in the form of accomplice,the network service provider belongs to the subject with social status and social expectation in the special field,and the behavior of not fulfilling the prescribed obligation is the damage to the function of the specific domain.It is legally invasive and should be criminally liable as a principal and exclude the application of neutral help.In terms of unfinished form,the academic community has different views on whether this crime can be determined to have a criminal attempt.This paper believes that this crime has a criminal attempt,but considering the preventive effect,the punishment for the criminal attempt can be based on administrative punishment,and it should replace criminal punishment as much as possible.In terms of the number of crimes,for the provisions of the third paragraph of this crime,there is a dispute between imaginative joiner of offense and overlap of articles of law.The actor does not perform this obligation and violates individual rights,thereby constituting other crimes.This behavior not only infringes the stable operation of the cyberspace order but also infringes on the specific legal interests such as personal information and reputation.It is a violation of multiple legal interests.Therefore,multiple laws should be used to identify crimes separately,and the penalty rules for imaginative joiner of offense should be applied.In addition to refining two concepts,the fourth part of this paper also narrowly explains the four "serious situations" that are the constituent elements of this crime.And this paper attempts to promote the application of this crime in the judicial process by clarifying specific standards.