Study On Crime Of Refusing To Excute Obligation Of Information Network Security Management

The fast development of information network technology has significantly changed the social life,which has also generated various new social problems.Amendment to Criminal Law(IX)passed on August 29,2015 has added several network-based crimes,and one of them is “the crime of refusing to perform the obligation of information network security management” by “network service provider”.The author's regular job involves providing close legal services to various large network service providers,and in order to ensure that the company can conduct self-regulation according to the requirement of new law and reduce the legal risks of corporate operation,the author worked with the corporate legal and technical personnel to analyze network-related crimes in Amendment to Criminal Law(IX).Through comprehensive research,we find that related regulations about the crime of refusing to perform the obligation of information network security management are not very clear.For example,description of the subject of this crime is disconnected from the field of network technology,and no specific definition or scope is provided;the content of security management obligation of different types of network providers and the punishable standard for violation of obligation in criminal law are unclear;in the regulations,there are no specific definitions of“supervision department”,“order”,“refusing to make correction” and the consequences of four types of harms.Due to these ambiguous points,there is greatuncertainty to apply this crime during administration of justice,which also makes it difficult for network service providers to manage specific behaviors during regular operation,and it had inhibited the development of information network technology.Based on search through various channels such as “China Judgments Online”and some effective judgments of a court,we find that since addition of this crime to Amendment to Criminal Law(IX),there has been no effective judgment so far,and we have not found any situation in which the network service provider entered criminal procedure due to being suspected of committing this crime.This is related to the social status of most network service providers,but the major reason is before the introduction of supporting laws,regulations and judicial interpretation,it is still difficult to determine the judicial application and penalties of this crime in practice.Since the release of Amendment to Criminal Law(IX)(draft),there have been various debates and researches of this crime in the theoretical circle,but there are no systematic discussions.In addition,many opinions are based on analysis from the professional legal perspective,while ignoring the fundamental background in which the crime of specialized information network technology might occur.The conclusions are relatively partial,lacking operability.Therefore,we decided to study various issues applied to crime of refusing to perform the obligation of information network security management in this paper.Legislation of this crime shows the expansion of criminal law,so during judicial application,efforts should be made to follow the tolerant rule of criminal law.This paper discusses certain issues during judicial application of this crime based on this law,hoping to find a balanced point between network security and network technology development.By combining related current laws and regulations,this paper tries to conduct definition and classification of network service providers according to different technical types of information network services at current stage,and analyze the content and scope of related obligations that different types of subjects shall assume based on that.In the meantime,the theoretical circle generally believes that this crime has specified the punishable standard of network service provider's negative “conduct of neutral aid”,but theauthor believes that during conviction,it should be further specified and grasped according to the causal relationship between behavior risk degree and crime behavior.This paper has also conducted systematic analysis of the superficial conflict between the “principles of safe harbors” in civil infringement field and the obligation of network security management.In addition to Introduction,this paper consists of another four chapters to study the judicial application problem of the crime of refusing to perform the obligation of information network security management: in Chapter I,we analyze the main composition of this crime,and try to provide a scientific definition and classification to the network service providers from the legal and technical perspectives;in Chapter II,we mainly analyze the action obligation source,classification and limitation standard of network service providers;in Chapter II,management of the network service provider's “conduct of neutral aid” in application of this crime is analyzed;in Chapter IV,based on the legislation status quo of this crime,control of important conviction circumstances of applicable parts in administration of justice is analyzed from the perspectives of objective aspect,consequence of harm and obligation conflict.