Criminal Regulations For Network Service Providers

With the increasing intensity of network crimes,the regulation of network service providers has expanded from civil and administrative to criminal.The early criminal law regulation adopted a mechanical one size fits all approach,which to a certain extent hit the expansion of its crime.However,in the face of new criminal characteristics,the effect of traditional criminal regulation is obviously insufficient.However,the network service provider's criminal behavior shows strong independence and serious social harm,coupled with the lack of regulation of traditional accomplice theory,the need to combat it is more and more prominent.With the promulgation of the criminal law amendment(9)of the People's Republic of China,China has a new exploration on the regulatory path of network service providers,which is to regulate crimes on the basis of helping the perpetrator to commit crimes and refusing to perform security management obligations.However,due to the generality of the law and the complexity of the crime,the judicial application of the new regulation has always been a topic discussed by scholars.The Supreme People's Court issued on October 25,2019 The interpretation of the Supreme People's Procuratorate on the application of law in criminal cases such as handling illegal use of information network and helping information network criminal activities stipulates in detail the application of law in new network crimes,and the study on how to apply the new regulatory methods to network service providers under the new judicial interpretation has become a demanding problem to be solved.Therefore,the regulation of network service provider can be divided into two aspects: legislation and justice.In terms of legislation,China has carried out three ways of formal accountability for network service providers.The first is the network service provider as a form of single crime.In addition to the most basic traditional single crime in the network coat,there are also scholars who have put forward three ways of imputation,namely,the preparation of principal,joint principal and indirect principal.Through analysis,the author thinks that only the theory of indirect principal has research value;the second is the crime with the nature of help,which can be divided into two parts The first level is the traditional theory of accomplice.Because it is faced with the evaluation dilemma of helping behavior of network service providers without perpetrator,scholars put forward three solutions: one-sided accomplice,reconstruction of the identification method of joint crime,and perpetration of helping behavior.The first two did not solve the evaluation dilemma in essence,and the third is the solution to break through the dilemma,which is also our second level,the theory of helping the perpetrator of behavior.The third is the inaction of inaction who refuse to fulfill the obligation of information network security management.Summing up the legislative exploration and judicial interpretation,it shows that there are some shortcomings in the legislation of network service providers in China,such as too wide scope of subject identification,unclear boundary of criminal legislation and lack of exoneration.In the judicial aspect,based on the time line of newly issued judicial interpretation and the judicial judgment as of February 29,2020,this paper analyzes the current situation of the application of the new regulatory path of network service providers and the causes of the problems.The application of the crime of helping information network crime has changed from conservative application to active application,there are disputes on the conviction of network helping behavior,and the application of sentencing is single;The crime of refusing to fulfill the obligation of information network security management has the characteristic of very low application rate.The main reasons are that the object of legal interest protection is not clear,the discrimination between charges is not clear,and the court system is not suitable for the new provisions.The fundamental reason is that the specific application between the two charges and the related charges is not clear.Combined with the newly issued judicial interpretation,the specific application of the crime of refusing to fulfill the obligation of information network security management and the crime of helping information network criminal activities is expounded in,and compares and differentiates the related crimes.Among them,the crime of helping information network crime mainly aims at expanding the interpretation of "crime" in its articles,analyzing the legitimacy of "conspiring" and "serious circumstances" and administrative preposition,the crime of refusing to fulfill the obligation of information network security management is mainly the shirking of the "management obligation",the criteria of entering a crime with serious circumstances and the elements of ordering correction The grasp of three aspects to elaborate.Through the analysis of the crime of helping information network crime,refusing to fulfill the obligation of information network security management,illegally using information network crime,fraud crime,concealing and concealing the crime,in order to prevent the crime confusion in judicial activities.Through the above research,we can build and perfect the crime mechanism in legislation,increase the application of occupational prohibition and prohibition order in judicature,improve the basic quality of judicial staff,so as to regulate the criminal behavior of network service providers in a more comprehensive way,restrict the scope of crime,and make the network environment of our country develop to a better place.