Objective Requirement Research Of The Crime Of Refusing To Perform Information Network Security Management Obligations

The crime of refusing to perform information network security management obligations is a new offence in the "Amendment to the Criminal Law(9)".It criminalizes the behavior of network service providers who neglect to perform information network security management obligations.Among them,the objective requirements of this crime are of great significance to the determination of this crime.In order to further analyze and understand this crime,combined with the latest judicial interpretation and the main views of the academic community,the determination of the objective elements of the crime of refusing to perform the obligations of information network security management is divided into the following three parts for analysis.The first part is an overview of the crime of refusing to perform information network security management obligations.First,the legislative background of this crime is introduced,the basic theory and classification of network service providers are combed,and the specific definition of network service providers in this crime is clarified.The obligations of different types of network service providers should be connoted The difference is that the narrowing of the network service providers referred to in this crime is interpreted as a network platform server.On this basis,combined with the academic community's main views on defining information network security management obligations,through analysis and argumentation,the information network security management obligations in this crime should be "information network security protection obligations" with the nature of cooperation obligations.The second part analyzes and defines the pre-procedures in the elements of this crime,and studies the subject,content form,and determination criteria of “refusal to make corrections” made by “order corrections”.It is believed that on the basis of determining the authority and responsibility of the supervisory authority in accordance with the law,the administrative pre-procedures should be detailed,especially when the notice of "order correction" is made,the specific matters,measures,legal basis and laws of the correction should be listed in writing as a result of.When identifying "refusing to correct",the subjective mentality of the actors and the feasibility of the correction should be fully considered to avoid situations that cause excessive damage and hinder the development of information network technology.The third part is to define the four result elements proposed in this crime.Taking the latest judicial interpretation as the starting point,and combining the existing views of the academic circles to carry out an argument on the serious determination of the plot.The criterion of serious circumstances should be judged based on the principle of humility in criminal law.To limit the interpretation of "illegal information" and believe that only criminally illegal information that meets the "mass dissemination" quantitative standard should be evaluated by this crime."User information" should also be limited to the scope of involuntarily publicly identifiable information,combined with the criteria for comprehensive judgment of "serious consequences" in the crime of infringement of citizen information.In view of the particularity of cyberspace,the "evidence" is limited to electronic evidence,and combined with the severity of the criminal proceedings,the seriousness of the plot is determined.Finally,with regard to the fourth "serious situation in other circumstances" clause,the author combined with relevant case analysis that the principle of legal punishment for crimes should be followed,and criminals can only be convicted when the crime is as harmful as the first three situations.Ensure that while punishing cyber crimes,the public interest,cyber order and the development of cyber information technology are balanced.