Research On The Judicial Application Of The Crime Of Refusal To Fulfill The Obligation Of Information Network Security Management

The rapid development of Internet information technology has brought about tremendous changes in social production and lifestyle,while cyberspace has become a society in the real sense.While the network provides a transmission channel for information flow,it also provides a breeding ground for new types of criminal behavior.Traditional criminal laws have been unable to cope with complex criminal behavior.In response to the increasingly serious criminal situation in cyberspace,the Criminal Law Amendment(IX)added three new types of charges for regulating cybercrime.Among them,the crime of “refusal to fulfill the obligation of information network security management” has created a new criminal liability model for network service providers to refrain from fulfilling the obligation of information network security management.Since the relevant judicial interpretations on the specific application of this crime have not yet been issued,and the theoretical circles rarely discuss the specific application of this crime,in order to avoid the persistence of this crime in the judicial practice,this article takes the specificity of this crime.The issue of judicial application is the object of study.Under the premise of the judicial application of the crime,the elements of this crime are interpreted and the scope ofresponsibility of this crime is clarified.The article is divided into two main parts.The first part is an in-depth analysis of the current situation of judicial application of this crime,mainly expounding the causes of the judicial dilemma of this crime,which is reflected in the first chapter of the text.The reason why this problem is studied is that the cause of the current situation of the judicial application of this crime is an important basis for solving the specific application of the crime.This paper analyzes the causes of the judicial application of this crime from three aspects: the confusion of the scope of responsibility of network service providers,the generalization of information network security management obligations,and the disorder of information network security supervision system.The confusion of the scope of responsibility of network service providers means that under the background that the concept of “network service provider” is still unclear,network service providers who are the mainstay of market operations have specific regulatory obligations for their business activities.The regulatory model,which is bound to be co-governed by the state and network service providers,over-emphasizes the regulatory obligations of network service providers.The breadth of the scope of the obligation has caused this crime to be a blur of the subjective responsibility boundary.The network security supervision department needs to define the scope of the information network security management obligation,and also to supervise the network service provider's violation of the management obligation.In addition,there are many duplicate functions between the network security supervision departments,resulting in the network service provider's information network.The fulfillment of safety management obligations has become“passive acceptance”,which is not conducive to the realization of the legislative intent to urge network service providers to actively fulfill their corresponding management obligations.The second part explains the legal provisions of this crime,and defines the scope of application of this crime.The content includes the second chapter,the third chapter and the fourth chapter.The second chapter focuses on defining the scope of the“Information Network Security Management Obligation”.The legal provisions of this crime do not clearly specify the specific scope of the obligation,but need to supplement the specific content of the obligation through laws and administrative regulations.According to the provisions of current laws and administrative regulations,network service providers have the obligation to protect user information security,supervision and review of illegal information,illegal activities,data storage,backup,technical support and assistance.On the basis of constructing the scope of obligations of different types of network service providers,the scope of network service provider obligations is substantially defined.The third chapter discusses the scope of the network security supervision department,the nature and form and content of the “order to correct” behavior,and the identification of “refusal to correct”.The hierarchy and responsibilities of the network security supervision department shall be clarified through legislation.At the same time,when the supervisory department makes a decision to “correct the order”,it shall normally take a written form,detailing the legal basis for correction,the specific matter of correction,and rejection.Correct legal consequences and other matters,and fully guarantee the rights of network service providers to raise objections.In determining whether it constitutes "refusal to correct",it should take into account factors such as the subjective psychological attitude of the crime as the main body,whether to take corrective measures and the difficulty of correcting the measures.The fourth chapter discusses the identification of the specific harmful consequences of this crime.On the basis of the interpretation of specific harmful consequences and other serious circumstances,it is considered that the ability to perform obligations in combination with different network service providers and the actual need to undertake management obligations should be considered when applicable.The scope of the crime,and on the basis of combining the conditions of the subjective and objective elements,clearly define the limits of liability for this crime.When network service providers face conflicting regulatory obligations,the choices for performance of obligations should be clearly indicated by the network security regulatory authorities.