Research On The Criminal Responsibility Of Internet Service Providers

As the expansion of the network pushes a large number of social advancements,it also brings about many social issues.The increasing number of cyber crimes is one of the representative issues.The Internet is a technology-dominated world and technical support is an essential part of the cybercrime.Therefore,the issue of criminal liability of network service providers emerges in society.Amendment(IX)to the Criminal Law of the People's Republic of China that promulgated in 2015 initially defines the criminal liability of network service providers with the provisions of Articles 28 and 29.While the imperfection of legislation and inefficient theoretical studies result in ceaseless arguing and many problems.Some of them even hinder judicial practices.This thesis consists of five parts:The first part elaborates the concept and classification of network service providers.It starts with the basic concept to illustrate the classification and sorts out several representative methods of classification in the theoretical area.After that,it proposes the main points of this thesis to lay a foundation of following applications of criminal liability.The second part starts from the combination of practice and theories and seeks for the theoretical ground for network service providers to bear criminal responsibility.In practice,some network service providers utilize the Internet to promote crimes and result in many serious consequences.This tendency keeps evolving but the judicial prosecution of criminal responsibility in these cases is still faced with difficulties.Penalty theories on the punishability of neutral helping conduct is in dispute.This thesis analyzes the advantages and disadvantages of some representative theories and proposes viewpoints on the basis of compromise theory.The third part firstly introduces the existing accountability models of network service providers,including the model of joint criminal responsibility,the mode of categorizing helping behavior to direct principal offender,and the mode of refusing to fulfill the regulatory obligation.This part clarifies the respective positioning of the three modes to distinguish the relationship among them.Secondly,it proposed specified scopes of criminal liabilities of different types of network service providers according to the proposed modes.The fourth part is devoted to analyzing the difficulties of specific crimes.First,it classifies some elements of the crime of refusing to perform the information Internet security management obligation,such as the scope of the regulatory obligation,the content and form of the order,and the judging standards of harmful consequences.Secondly,it proposes some points on the argument of the nature of promoting cybercrime activities.It denies viewpoints that punishment scope of this crime should be expanded;affirms that "being aware of" should cover “what should be known” and puts forward the judicial presumptive standard of “what should be known”.The fifth part makes suggestions on the criminal liability of network service providers.From the perspective of legislation,it is necessary to perfect the current definition of crimes,clarify the logical contradictions between the laws and regulations,and improve the application of the prohibition system in cyberspace.From the judicial aspect,we shall push the process of active conviction,fully consider the technical possibilities,establish a reasonable and legal judicial conviction mechanism,and attach equal importance to the fight against crimes and the protection of network security.