Research On The Crime Of Refusing To Fulfill The Obligation Of Information Network Security Management

In the 21 st century,the development of Internet technology has brought social innovation,at the same time,network crime has also brought great impact on the traditional crime theory.The previous traditional crime governance mode is no longer applicable to the regulation of network crime.Network service provider is an inseparable portion of the network operation,because of its technical advantages and important position in the Internet operation,it becomes an important subject to maintain network security.If the network service provider neglects to fulfill the network security management obligation,it may connive at network crime and cause the expansion of network crime.Therefore,the increasing crime of refusing to perform the obligation of information network security management in criminal law of our country endows the network service provider with the obligation of managing network security,which makes the network service provider become an important part of controlling network crime.However,there are many problems in the judicial application of this crime.First of all,this crime is a typical omission crime and identity crime.However,the definition of the subject of this crime and the scope of the act obligation have not been clearly defined in the criminal law and relevant judicial interpretation.Secondly,because of the differences in technical characteristics and importance,different network service providers should bear the network security management obligations Different,how to clarify the obligations of different network service providers has become a difficult problem in judicial practice;thirdly,there are disputes in the judicial application of the administrative pre-processing of this crime,and the administrative preprocessing of this crime is obviously negative;finally,there are disputes in theory and judicial practice on the determination of the subjective guilt of this crime.The purpose of this paper is to study the above problems,in order to clarify the constitutive requirements of this crime,and to promote the judicial application of this crime.This article consists four parts:The first part: the definition of this crime subject.This part describes the current situation of legislation and theoretical theory about the definition of internet service provider of our country,and compares with the definition of network service provider in foreign countries.Through the research of the these problems in the definition about the subject of this crime at home and abroad,the lack of a unified definition of the subject of this crime at home and abroad,and the lack of internal responsibility positioning led to the confusion of classification;the definition of the subject of this crime abroad is also imperfect,Japan and the United States have no hierarchical classification of the subject of this crime,Germany lacks the importance standard,and the classification of the subject of this crime is not comprehensive.The author summarizes the above problems,redefines the network service provider,and classifies the network service provider through technical standards and importance standards;The second part: the action obligations refinement of of this crime.This part summarizes the general obligations of the network service provider by integrating the contents of relevant laws and regulations,and reviews and supervises the obligations of network information,The obligation to delete and report illegal information promptly,the obligation of Internet users privacy protection,and the obligation to assist judicial organs in investigation and evidence collection.Then,the obligations of network service providers are classified by technical standards and importance standards,and the obligations of four types of network service providers are different.The important network service providers should also fulfill the special obligations from the network security law;The third part: the negative problem of administrative preposition.This part first analyzes the difficulties in the identification of the administrative preposition procedure of this crime,and clarifies the specific connotation of "supervision department","order to correct","refuse to correct" and other parts;secondly,because the victim's relief channel in criminal is blocked,and the one-sided starting subject and the lag of the starting procedure lead to the negative administrative preposition procedure of this crime,in order to overcome This negativity should be remedied by establishing a communication and supervision mechanism among network users,network service providers and regulatory authorities;The fourth part: the identification problem of subjective fault.This part first expounds the academic theory about the subjective fault of this crime,and proves the irrationality of the fault theory by demonstrating the differences between this crime and the traffic accident crime;then,by analyzing the internal logic of this crime and comparing with similar crimes,it concludes that the subjective fault of this crime should include direct intention and indirect intention;finally,in the division in the practice of law,the subjective guilty of this crime should satisfy both the willpower factor and the cognitive factor.After comparing the fast broadcast case with Hu case and Chenlong case,the conclusion is drawn that the key to distinguish the subjective guilty of this crime from the direct intention or the indirect intention lies in whether the actor has the intention to provide specific illegal network services subjectively.