The Application Of The Crime Of Refusing To Perform The Obligation Of Internet Network Security Management

With the rapid development of Internet information technology,while we enjoy the convenience brought by the Internet,cyber crime has become more and more serious.Traditional criminal law is facing unprecedented challenges.The emergence of the QVOD case has made Chinese lawmakers aware of the gap in legislation on cyber crimes.Therefore,the criminal law amendment(ix)adds three new cyber crimes.They are the crime of refusing to perform the obligation of information management in information network security,the crime of illegal use of information network and the crime of helping information network.This is a positive measure taken by China's Criminal Law against increasingly complex cyber crimes and reflects the importance Chinese lawmakers attach to the development of Internet technology and cyber security.In November 2019,the supreme people's court and the supreme people's procuratorate jointly issued the interpretation on several issues concerning the law applicable to criminal cases involving illegal use of information networks and assistance in criminal activities of information networks.(herein after referred to as "interpretation")although the interpretation has more detailed definition of "internet service provider"," causing a large number of illegal information dissemination","causing serious consequences","there are other serious circumstances of the expression" in the Crime Law,it strengthens the standard of crime and the possibility of its application,but there are still some problems in the application.As for the subjective fault of this crime,most scholars believe that it can be seen from the description that the subject of the act is intentional,that is to say,the subject is conscious of the crime.However,the specific content of "consciousness" is not clearly defined.In the article,the author has not given clear provisions.In the article,theauthor refined the “consciousness”and the presumption of it.The precondition of refusing to perform the obligation of information network security management is to fulfill the duty of information network security management.The duty of information network security management is formally included in the Adjustment(ix)of Criminal Law for the first time,and the corresponding obligations and consequences of responsibilities of internet service providers are stipulated.However,in the Crime Law and interpretation,there is no accurate definition of the range of information network security management obligations.Therefore,on the premise of defining the concept of Internet service providers,it is necessary to reasonably define the scope of information network security management to avoid the expansion of external causes and increase the unnecessary burden on Internet service providers.For example,take a page from the European Union's playbook,categorize the content of services provided by Internet service providers,and define the different responsibilities of internet service providers providing different types of services;The stricter the national and industrial standards are,and the more stringent the legal responsibilities of the internet service provider.And identify the force majeure factors as the exemption of this crime.The law clearly stipulates the administrative enforcement measures,the supervision department orders are amended after the Internet service provider rejects the correct,has the active Internet service provider cache value,raises the threshold of crime,and avoids the too big impact on the development of network information technology.Although the interpretation clearly defines the scope of regulatory authorities,mainly including the network and information departments,telecommunications departments and public security organs,we found that the interpretation does not seem to have much significance for the problems in reality.Diversification of regulatory departments,unclear powers and responsibilities,the use of the order of correction is not standard,we are facing a major problem.It is an effective way to strengthen the application of this crime to clarify the functions and powers of the supervision department,straighten out the power list system and standardize the specific application method of ordering correction.