The Research On The Criminal Responsibility Of Network Service Provider's Omission

The high popularity and development of Internet not only promotes social progress,but also gives criminals new opportunities.New types of crimes emerge at the historic moment,while traditional crimes are evolving in criminal channels and means.With the explosive growth of cybercrime,it is difficult to cope with the challenges brought by the concealment and rapidity of cybercrime only by relying on the strength of the state.From the perspective of its own characteristics and development trend,network service provider is an important medium to connect the Internet and network users,providing information network technology support for network users,which makes the network service provider have a natural advantage in the governance of network environment compared with the national administrative force.In view of this,many countries require network service providers to actively fulfill the corresponding management obligations,and put the inaction of network service providers into the criminal law.Based on the type of network service provider,this paper studies the legitimacy and limitation of liability of the network service provider's omission as a criminal regulation from the source of obligation.This paper is divided into four chapters.The first chapter is to define the concept of network service provider and its omission,and to classify it on this basis,which lays thefoundation for the following in-depth analysis of its obligations and criminal responsibility.First of all,through the regulation of relevant laws and regulations as well as the combing of theoretical and academic views,combined with the actual development of today's network service providers,the definition of network service providers and the construction of binary structure of the type of results.On the basis of dichotomy,the network service provider is divided into content service provider and intermediary service provider,and according to the different technical functions,the network intermediary service provider is divided into access service provider and platform service provider.Secondly,this paper holds that the omission of the network service provider includes real omission and non real omission.The act of neglecting to take technical measures to supervise the network information can constitute the omission crime,but the act of failing to perform the relevant obligations stipulated by laws and regulations such as security protection should also be covered under the scope of the omission crime of the network service provider.The second chapter is to explore the obligations of network service providers.The source of the obligation of the real omission crime is laws and regulations,but the source of the obligation of the network service provider is still to be investigated.First of all,this paper combs the obligations of network service providers in laws and regulations.According to the time of the occurrence of criminal facts,the obligations are divided into pre event security protection obligations,content review obligations,in event and post event prevention,remedy obligations and cooperation obligations.Secondly,based on the theory of guarantor,this paper explores the source of its essence as obligations,that is,network services The provider has a de facto dominant position in the danger areas under its control.The capacity of the network service provider determines the scope of its obligations.In the end of this chapter,the specific obligations are determined on the basis of the subject type,trying to make a clear obligation demarcation based on the domination of the dangerous sources.The third chapter is the analysis of the legitimacy of the criminal regulation of the omission of network service providers.There are many scholars who question the punishability of the omission of the network service provider.This paper explains and demonstrates this from three aspects.First of all,the high speed and instantaneity of network communication make network crime have a strong radiation and vitality.Under the current situation of lagging law enforcement of administrative organs,the omission of network service providers with technical advantages will objectively promote the criminal process and cause or expand the impact of harmful results.It can be said that their behaviors have great social harm.Secondly,this paper uses the "risk society theory" to prove the rationality of incorporating the omission of network service provider into the criminal law.Finally,the defense reason of "neutral help behavior" of network service provider is denied.When the judgment rule of "knowing + violating obligation" is met,the behavior of network service provider will exclude neutral help behavior.The fourth chapter discusses the application and limitation of the criminal liability of the omission of the network service provider.It is against the modesty of criminal law to assign too high criminal responsibility to the network service provider while transferring the supervision responsibility that belongs to the administrative organ to the network service provider.In this paper,the scope of the main body,the form level and the substantive level of multi angle analysis.Different types of network service providers have different charges and responsibilities.On the formal level,according to the principle of responsibility,this paper puts forward its own views on the subjective foresight of network service providers and the limitation of harmful results.That is to say,subjectively,the network service provider should have "knowledge" of the facts of the network crime,and the principle of direct result should be used to determine the harmful result caused by it.On the substantive level,according to the theory of omission,this paper defines the possibility of performance of the obligation as a result and thepossibility of avoidance of the result,and puts forward the corresponding judgment standards,in order to provide some help for judicial practice.