Criminal Responsibility Of Internet Service Provider

Network service providers are small enough to provide single services such as access,search,query and access to relevant information for network users,and large enough to adjust information content,guide public opinion,and induce network users to commit illegal and criminal acts.Especially with the popularization of the Internet,the endless emergence of network crimes and the alienation of joint crimes,these situations make the criminal liability of network service providers who master the Internet technology arise.China's criminal law amendment(9)issued in 2015 initially established the criminal responsibility system of network service providers for the crime of refusing to perform the obligation of information network security management and the crime of helping information network criminal activities.In 2019,the introduction of the interpretation on Several Issues concerning the application of laws in criminal cases such as handling illegal use of information networks and helping criminal activities of information networks,provided certain recognition standards for the application of the above-mentioned crimes to investigate the criminal responsibility of network service providers,but there are still some areas that need to be clarified and improved.In China,there is no clear definition of network service provider and no classification.Before discussing its criminal responsibility,we need to clarify its concept connotation and classification.This paper holds that the network service provider should adopt the generalization and the tripartite method.In terms of the criminal responsibility of Internet service providers,this paper analyzes the current situation and mode of the responsibility attribution of the Internet service providers in the United States,Germany,Japan and other foreign countries.It is concluded that most of these Internet service providers tend to limit their criminal responsibility.The United States and Germany agree to establish a hierarchical responsibility system and a liability exemption clause.All three countries agree to establish a hierarchical responsibility system and a liability exemption clause It advocates to limit the scope of punishment for the act of neutral help.Compared with the current situation and patterns of liability fixation in mainland China and Taiwan,China not only relies on the pattern of principal offender and accomplice,but also creates two new patterns of liability fixation: thepattern of helping the principal offender and the pattern of refusing to perform legal obligations.Due to the lack of classification of network service providers in our country,it is inevitable to fall into the mud of "one size fits all" arbitrary conviction and expansion of the crime.So on the premise of the above classification,this paper makes a brief analysis of the different types of network service providers in which situation and which mode of accountability is applicable,in order to imitate the foreign recognition of the hierarchical responsibility system of network service providers.According to the existing legislation and relevant judicial interpretation of our country,the following problems are common in judicial practice: the punibility of neutral help behavior,the ambiguity of subjective identification and the dispute as the scope of obligation.In this paper,we think that when we analyze the punishability of neutral help behavior,we should distinguish risk and danger,neutral help behavior and punishable help behavior based on the particularity of the behavior,and use the compromise theory of neutral help behavior to limit the scope of punishment.For the definition of the scope of "knowing",we should combine the relevant judicial interpretation,distinguish clearly knowing and should know,and combine the will factors to comprehensively determine the standard of "knowing",while the determination of "serious circumstances" should be based on the relevant judicial interpretation,and then weigh the positive interests and dangerous facts brought by its actions.In the absence of specific management obligations,it is not allowed to impose excessive requirements on the network service provider section.It is necessary to establish general applicable network service provider protection rules to clarify the general management obligations and liability exemption clauses.It is hoped that this paper can clarify the criminal responsibility boundary of the network service provider and improve the deficiency of the network service provider in practice.