The Crime Of Refusing To Fulfill The Information And Network Security Management Obligation

The Criminal Law Amendment(IX)stipulates that the cyber service provider's refusal to perform the information network security management obligation stipulates the criminal responsibility of the non-infringement,which aims to promote the network service provider to actively fulfill the information network security management obligations stipulated in the previous criminal law.If the network service provider refuses to fulfill its obligations and causes serious consequences,it may stipulate that the criminal law shall impose sanctions on the network service provider's refusal to perform its obligations.However,such arrangements by legislators are in conflict with the restrictions on conviction under the principle of technical neutrality,and there is a tendency to expand the application of criminal law.The technology neutrality principle advocates that network service providers do not have the probability of censure while doing normal business and providing technical services,to protect the freedom of network service providers and the normal needs of society.Under the circumstance of gradually expanding the network service provider's behavioral crime circle in China,it is necessary to use the principle of technology neutrality to theoretically examine and limit the interpretation of this crime,and to rationally define the judicial application of this crime in order to maintain the modesty of criminal law.As far as the current sinful provisions are ambiguous,the relevant judicial interpretations have not yet been introduced,and the judicial application of this crime has encountered obstacles,this paper firmly adheres to the principle of modesty and restraint of criminal law,and explain the purpose of the crime to narrow the criminal circle and prevent the crime from being expanded in judicial application to become a new pocket crime.In terms of the subject of this crime,the extraterritorial law stipulates that the network content service provider assumes general responsibility for the information used and excludes the application of the exemption clause from the network content service provider.Therefore,the subject of this crime only refers to the network access service provider and the network platform service provider.Starting from the constitutional requirements of the purely non-sentence “legal obligation”,combined with the supervision of the guarantor's obligations,the criminal law obligations of this crime should be limited to the post-event supervision information obligation,the user information protection obligation,the assistance of law enforcement obligations,and the necessary pre-examination obligations for filtering special important matters.In terms of the subjective aspect of this crime,it should be intentional.From the contemptuous attitude of the perpetrator's indulgence of legal interests,it should include indirect intention and exclude negligence.The pre-administrative procedures prescribed in this crime should require the regulatory department to strictly determine the specificity of the content of the correction in writing,and “refusal to correct” is both the expression of the behavior of the actor and the result of its behavior.Finally,from the perspective of the result elements,the four plots stipulated in this crime are the result of the internal elements.If the network service provider refuses to fulfill its obligations and does not satisfy other serious circumstances such as the result elements of this crime,it does not constitute this crime.