The Research On The Criminal Responsibility Of Network Service Provider's Omission

With the rapid development of science and technology and the increasing popularity of basic network facilities and services,we have entered the digital,informational,and intelligent era of the global village.In the context of big data,network service providers follow the pace of the times and provide corresponding network services according to different user needs,reducing the resistance in information dissemination,facilitating people's daily lives,and promoting the progress of science and technology,and ensuring the exchange of information on individuals through the Internet.Accepting,collecting and disseminating new information in time to create a new,equal information space.However,the rapid development of information networks has two sides,benefits and risks coexist at the same time.Some cyber security incidents have caused huge losses to the interests of network users,network owners,and network service providers.In the face of hidden dangers in network security,the "Criminal Law Amendment(IX)" added a clause to the network service provider's criminal regulation in Article 286,in order to urge network service providers to fulfill their obligations.It's also the first time that the criminal law regulates the omission of network service providers,which has important theoretical significance and practical value.The application of the crime of refusing tofulfill the obligation security management of information network in judicial practice is temporarily blank.In a small number of studies devoted to this crime,most of them discuss the necessity and feasibility of adding this crime.As for the network service provider,few articles mention the scope of its definition and obligations.Therefore,to investigate the criminal liability of network service providers' omission,we must base on the specific understanding of the Article 286 of the Criminal Law,clarify the boundaries of the network service provider's management obligations and analyze the subjective and objective elements of this crime.This article is divided into three parts: The first part is the first chapter,which mainly elaborates on the basic concepts of network service providers and the legitimacy of legislation.The first section combines the doctrine of scholars and law on network service providers,and determines its definition according to its essential characteristics.The second section analyzes the legitimacy of criminal responsibility of network service providers' omission,and the network service provider is the“gatekeeper”of network information flow.Terrorism,rumors and other unlawful actions may intensify under their influence,incriminating firstly has practical necessity.Including network service providers' omission in the scope of penalties also meets the criminal concept of reasonable criminalization.Every country in the world adopts a positive legislative attitude to deal with the network service providers' omission.China should also comply with this trend and carry out necessary legislation,changes,abolition and interpretation to the law.The second part of this article begins with the constitutive elements of crime.The second chapter examines the network service providers as the source of the obligations and summarizes the provisions of existing laws and administrative regulations on management obligations.In accordance with the time before and after the occurrence of illegal information,the management obligations are divided into pre-review obligations for network information,real-time regulatory obligations and subsequent deletion,preservation,and report obligations.Because of the broad concept of network service providers,no further type distinctions will inevitably lead to ambiguity in their criminal liability boundaries.Therefore,it is divided intonetwork connection service providers,network content service providers,and network platform service providers according to its service characteristics and controllability.The network connection service provider only adopts technical measures on the information confirmed as illegal information or required by the regulatory authority,network content service providers have administrative duties on the information they process and publish,network platform service providers need to combine specific operational modes and differences in service content to set specific inspection and supervision obligations.The third chapter is mainly designed to prevent improper expansion of network service providers and limit their criminal liability.First of all,"refusing to correct" reflects the attitude of network service providers in actively pursuing or indulging risky results.Therefore,the psychological element of inaction can only be intentional.Second,network service providers must have capabilities,there are three criteria for distinguishing the capabilities: No.1,the assessment of capability is limited to the technical level at the time of the incident.No.2,judgment of capability should be based on the general technical level of network service providers who operate the same or similar businesses and have similar business scale.No.3,network service providers have the financial ability to perform management duties.At last,if network service providers face “adopting timely and adequate corrective measures has failed to prevent the occurrence of hazardous results” or“ even if technical measures are taken,it cannot stop the result ” two situations,it should be considered that there is no result to avoid the possibility.The last part of this article is the reflection and prospect of the practical application of the crime.As the management obligations are fragmented in the legal provisions and the content is also repeated,which may cause the dilemma of application of justice.The best way is to formulate a specific administrative regulation that reasonably sets the management obligations of network service providers.In addition,laws and administrative regulations need to be improved,the "Network Security Law" and "Public Security Administration Punishment Law" should be properly combined with criminal law,Not only clear the boundaries of administrative violations and criminal offences,but also urge network serviceproviders to actively fulfill their obligations.The establishment of the crime of refusing to fulfill the obligation of information network security management is a necessary condition under the executive order of "ordering corrective actions".This has caused the scope of the crime's regulation to be greatly reduced,and the ability of network service providers to independently assume criminal responsibility has also been weakened.Whether it is proceeding from the legislative intent or the constitutional elements of the crime,it should be deleted.Before the requirements are removed,we must correctly understand and grasp the connotation of "order corrections." It is the right choice for the crime to make clear the issuing body,the content and the way of notification in the form of law.