On The Crime Of Refusing To Fulfill The Obligation Of Information Network Security Management

With the popularization of information technology and all-around coming of the Internet age,Computer cybercrimes are showing high incidence trend gradually,meanwhile,more and more new forms appeared.China's criminal law has actively responded to this new type of crime while facing such severe challenges of this era.“Criminal Law Amendment(IX)” newly added three charges about the Governance of Computer Information Network.For example,this Crime establishes relevant network supervision obligations for network service providers.The creation of this crime is the first time that criminal law regulates the inaction of network service providers,it has great theoretical value and practical guiding significance.While there are still ambiguities in the provisions of this law,such as the scope and classification for network service providers;the Cyber Security Management Obligations they need to undertake;“supervision department”,“order to correct” and four kinds of hazard results in the objective aspect.The ambiguity of the regulations and many controversies existed in the academic field of criminal law resulting in the lack of a fixed standard in the judicial application and this crime is in trouble for a long time.By the end of 2019,among the cases published by China Judgment Documents Network,there are only two cases were convicted and punished for this crime.This article will focus on the comparison of domestic and foreign laws and regulations,the standardized classification of network service providers,the identification of objective aspects and the dispute of subjective aspects,in order to provide some suggestions for judicial practice.In addition to the introduction and conclusion,this article has four parts:The first part is the investigation of the crime of refusing to perform the relevant obligation of Internet.It discusses the legislative background,foreign legal regulations and the legitimacy of the crime.In order to fight against network crimes and maintain the security of cyberspace,and because of the lack of regulation on the criminal acts of omission of network service providers in China's law,China's criminal law adds this crime to respond to the actual needs.The United States,Germany and other countries,which have been in the leading position in the world,have a relatively comprehensive and perfect legal provisions on the supervision and management obligations of Internet service subjects.China's criminal legislation and judicial practice can learn from the reasonable provisions and successful experience of foreign countries and combine with China's national conditions to coordinate and improve the criminal liability regulations of Internet service providers.At the same time,the establishment of the crime is legitimate.The network service provider is the technical supporter of the realization of Internet functions and the foundation of the operation process.Its unique dominant position in cyberspace requires it to bear corresponding supervision and management responsibilities.It can be seen that although civil and administrative laws have made relevant Provisions on the obligations and responsibilities of network service providers,they still cannot have To effectively curb the development of network crime and establish this crime is conducive to the effective connection between the pre law and criminal law.The second part analyzes the subject of this crime.Starting from the definition of network service provider,this paper discusses the definition and regulation of this subject in academia and advanced law.Then the paper proposes the necessity of standardizing the classification of network service subjects.Although there are several mainstream classification methods,each of them has its own defects and limitations.In this paper,the author proposes a new classification method: for the standardized classification of network service providers,the author thinks that it can be divided into network content service providers(providing services for their own information),network intermediary service providers(providing services for others' information).Among them,the network intermediary service provider can be divided into two types:network access service provider and network platform service provider.The third part of the crime objective aspects of the identification and research.It involves the discussion of the types and contents of the obligations in the "failure to perform the information security management obligations",and defines different obligations for different types of network service subjects;it establishes new standards for the identification of "supervision department","order","refusal to correct";four result elements are also the focus of this chapter,and the correct understanding of the result elements is conducive to the arrangement In addition to this crime in judicial practice encountered obstacles.The fourth part discusses the subjective dispute of this crime.For the subjective aspect of this crime,the controversy in the criminal law academic circle is in the ascendant.The author thinks that this crime can only be constituted by intention,including direct intention and indirect intention.However,subjective negligence is obviously not in line with the original intention of legislation and the text of this crime.After the subjective intention is proved,the paper discusses the connotation of intention,that is,the elements of cognition and will,the contents and degree of knowledge,the presumption of knowledge,and the boundary between the Internet service subject's "Hope" and "indulgence" attitude towards harmful results.