The Meaning Of Criminal Law Of "Safe Harbor" Rule

Today,with the increasingly prosperous Internet economy,network crimes take various forms and emerge in an endless stream,and the behavioral regulation of Internet service providers has gradually become a hot topic of theoretical research.As the business subject providing network services,Internet service providers are often used to commit crimes.To define the scope of their criminal responsibility and avoid the improper expansion of the scope of punishment,the "safe harbor" rule should be applied.In order to promote the application of "safe harbor" rule in criminal law practice,the first problem to be solved is to clarify the meaning of criminal law of "safe harbor" rule.This article has three chapters altogether,the total-score structure.The first chapter is an overview,through the analysis of the current situation of criminal responsibility of network service providers in China,points out the necessity,legitimacy and predicament of the application of the "safe harbor" rule of criminal law.Through the analysis of the applicable conditions of the "safe harbor" rule,puts forward that it can be used as a basis for excluding crimes,pointing out the topic and leading the full text.The first section summarizes the existing criminal liability mode of Internet service providers in China.Based on the expansion trend of the scope of criminal liability of Internet service providers,it further points out that the defects of this mode may lead to improper expansion of the scope of punishment.Therefore,it is urgent to apply "safe harbor" rules to limit the scope of criminal liability of Internet service providers.In order to apply the "safe harbor" rule,it is the key to clarify its meaning of criminal law.In the second section,by comparing the applicable conditions of the "safe harbor" rules in China and the United States,it is shown that the applicable conditions in China are more stringent,and the "safe harbor" rules applied by Internet storage service providers and search engines are further summarized as follows: The first is not knowing the facts of crime.The second is to fulfill the obligation of "notification-deletion".Third,they lack the ability to control power and are in a neutral position.The third section points the total argument in this paper: the rule can be used as the basis of excluding illegality,because on the one hand,while some elements of the "safe harbour" rules have been typed,but the others such as lack of "control rights capacity" and the elements indicating network service providers in the neutral position are the emphasis of research;On the other hand,the rules of "safe harbor" conform to the form and substance requirements of excludingcrime nature,and their specific application conditions are also reflected.According to the theory of crime constitution,eliminating criminal nature can be divided into eliminating illegality and eliminating responsibility.Therefore,the latter two chapters respectively discuss the reasons and conditions for the exclusion of illegality and liability.Chapter two analyzes the reasons of "safe harbor" rules excluding illegality.The first section discusses the object regulated by the "safe harbor" rule is the proper business behavior implemented by the Internet service provider.Internet service providers have to be neutral,having professional equivalence for the purpose of legitimate business.Legitimate business behavior can be defended based on legitimate business,but legitimate business in China belongs to a fact of excluding illegality beyond the law at most.On the contrast,"safe harbor" rule is explicitly stipulated by administrative regulations,so it should be applied in priority.The second section puts up with although the act of providing Internet service is always accompanied with the risk of infringement of legal interests,it is permitted by law due to its indispensable usefulness to the society.The dangerous duty of avoidance is distributed among Internet service providers,users and even the society.As long as the content provided by the Internet service provider is always of non-infringing use in substance,its reasonable duty of care done and the Internet service provider having no intention subjectively,it will not be illegal even if it fails to avoid dangerous realization in the end.Chapter three,by analyzing the identification and theoretic base of "ability and rights to control" and misidentifications of Internet service providers,clarifies the application of exclusion of liability in "safe harbor" rules,which is limited to the lack of normative control ability of Internet service providers or unavoidable misunderstanding about normative control ability existing.The first section discusses the difference between "ability and rights to control" and "criminal capacity"."Ability and right to control " is a kind of ability to control and prevent others' illegal or criminal behaviors,which concludes factual control ability and normative control ability,while criminal capacity is the ability to commit a crime that is different from the ability to bear punishments.Those two are different in basic connotation,essence,content and objects of judgment.The second section discusses the status of "ability and rights to control" in the system of crime theory.On the basis of the distinction between possibility of action and expectation possibility,it is pointed out that possibility of action as a person's behavior ability,the lack of it is unable to control in fact,and the lack of expectation possibility is unable to control in a norm.According to the classification of "ability and rights to control ",it is argued that the lack of factual ability to control means cannotbehave,cannot be regarded as possess to the possibility of omission and does not conform to the constitutive elements of the crime of omission.In the absence of normative control ability,the network service provider cannot be expected to implement the applicable behavior,which is the lack of expectation possibility and therefore means the exclusion of responsibility.The final section discusses the liability determination of isps when they make a mistake in understanding whether they have the ability to control criminal behavior and whether they can apply the "red flag" rule.The cognition error of the Internet service provider about the fact control ability is the fact error,excluding intentionally;The mistake of understanding about the normative control ability is the mistake of expecting the possibility and excluding the responsibility when it cannot be avoided.The error regarding the application of the "red flag" rule is an illegality recognition error that can be avoided if the isp fulfills its active query obligation,so the liability cannot be excluded.