A Probe Into The Judicial Application Of The Crime Of Refusal To Perform The Duty Of Information Network Security Management

The crime of refusal to perform information network security management obligations was first stipulated in the 2015 "Criminal Law Amendment(9)".Its original intention was to better respond to the increasing incidence of information network security crimes in the Internet era.Through the establishment of a government-network platform The governance model of co-governance forces network service providers to consciously perform management obligations and maintain a good Internet ecological environment.However,this crime is difficult to apply in practice,and there is a risk of becoming a "zombie crime".The reason is that the criminal composition of this crime is vague and controversial.The 2019 Interpretation on Several Issues Concerning the Application of Laws in Criminal Cases such as the Handling of Illegal Use of Information Networks and Helping Information Network Criminal Activities has explained and explained many controversial issues in this crime.However,the relevant laws and regulations of our country have regard to the provision of network services.The provisions and interpretations of the definition of the connotation of this crime are still vague,the form of the crime has not yet been clarified,and there are still disputes about the boundaries of information network security management obligations and the necessity of administrative procedures in the objective aspects of this crime..In this regard,this article is divided into four parts to discuss the controversial issues in the judicial application of this crime.The first part of this article mainly discusses the definition of network service providers.Based on the comprehensive consideration of legal foresight and stability,the subject of this crime is defined as the unit or individual that uses the Internet system to directly provide information to users or provide services for the purpose of obtaining information.At the same time,network service providers are classified into four categories:network content,storage,access,and caching services.The second part of this article focuses on the objective aspects of this crime.First of all,this section focuses on the discussion of the boundaries of information network security management obligations,clarifying that the information network security management obligations in this crime should only be derived from laws and administrative regulations,and at the same time,the information network security should be categorized on the basis of network service providers.The management obligations are classified into three categories:network content management obligations,network security guarantee obligations,and technical support and assistance obligations.From these three main obligations,the obligations of different types of network service providers are clearly distinguished.Secondly,in view of the problem of excessive burden on administrative organs and complete exclusive criminal responsibility caused by administrative procedures,it is recommended to delete the expression "rejection of correction upon order of correction" from this crime,so that ordinary users and administrative organs can be roughly The same "supervisory" right.Finally,this part sorts out "user information" and clarifies its coverage and specific content.The third part of this article focuses on the form of the crime.Based on the analysis of the five theories about the form of the crime,it is clear that intention should be the form of the crime.And from two aspects,which are different from the crime of helping information cybercrime activities and unify with the crime constitution of this crime,the guilt form of this crime is justified.The fourth part of this article mainly puts forward suggestions on the construction of criminal compliance of this crime.This crime opens up a new model of co-governance between cyberspace countries and enterprises,and to a certain extent,it implicitly conforms to the concept of criminal compliance,which is conducive to maintaining information network security and improving the ability of enterprises to resist risks.However,this crime is not a complete criminal compliance system.It is still necessary for network service providers to establish a smooth complaint management mechanism and a clear internal management system.The judicial organs establish incentive models such as"procuratorial recommendations" and "conditional non-prosecution".Internet service providers and judicial organs start with this crime to explore the specific implementation path of establishing a criminal compliance system in our country.