Study On The Problem Of The Crime Of Refusing To Perform The Obligation Of Information Network Security Management

The "Amendment(IX)to the Criminal Law of the People's Republic of China"adopted in 2015 newly established the crime of cybercrime,in which Article 28 regarded the failure of network service providers to fulfill their security management obligations as a crime.Since the inception of this crime,its application rate is extremely low in judicial practice,and there is an inappropriate interpretation of this crime in the only few cases that can be queried.The reason lies in the fuzziness of the description of this crime in the legal provisions,and the blank or overlapping of other relevant laws.Although the judicial interpretations have detailed the relevant issues,there are still unfinished issues,mainly including:the type and responsibility of the network service provider is unclear,the unclear obligation of the information network security management,etc.This article studies the difficult parts of the crime,and the text is divided into five parts.Faced with the increasing frequency of cybercrime,there are loopholes in the criminal law that need to be filled.Due to the change of status,the inaction of network service providers has already been seriously socially invasive;based on the dominance of dangerous sources,the criminal law stipulates the status of network service providers' network security guarantors.The behavior that constitutes the crime of refusing to perform information network security management obligations is complicated.In the determination of obligation,it should be noted that the criminal law sets two levels of obligations for the Internet service provider.The first layer is network security set by law and administrative regulation.The second layer is to fulfill the obligations of the administrative order.The perpetrator only commits a crime if he violates both obligations at the same time.In order to avoid excessive expansion of the scope of obligations,it is necessary to limit the scope of obligations.Clarifying the source and classification of the obligation will help correctly delineate the obligations of network service providers.As for the determination of "refusal to make corrections ordered by the supervisory authority",it is necessary to meet the conditions that the regulatory body is qualified and has statutory authority,and that the corrective measures made by it are legal.The actor's inaction should be judged in many ways from its ability to act and specific behavior.Due to the lack of consistent provisions on network service providers in current legislation,and there are different views on the division of types in academia,the scope of the subject of this crime needs to be clarified.The difference in the ability to dominate information can be a standard for distinguishing different types of network service providers,and on this basis,the subject of this crime should be limited to the network basic service providers and intermediate service providers.The criminal responsibility of network basic service providers should be appropriately restricted.Intermediate service providers are currently the largest number of subjects,and their criminal responsibilities can be clarified on the basis of further subdivision.The guilt of this crime is unclear.Academia has debated whether this crime should be a deliberate crime or a negligent crime.There are also views that this crime is a compound crime.After setting a requirement for a legal obligation,it is still "refusal to correct",which reflects the actor's intentional mentality,so this crime is a deliberate crime.The key to the determination of the intention is to judge the cognitive elements.The legislation clearly stipulates three specific situations in line with this crime,and stipulate the pocket clause.The latest judicial interpretation stipulates quantitative standards.In the specific determination,it is necessary to pay attention to the reasonable judgment of the illegal information,user information and other elements,and the use of pocket clauses should be cautious.