The Non-action Crime Responsibility Of Internet Service Provider

At present,the boundary of the criminal responsibility of the negative crime of the Internet Service Provider(ISP)in China is blurred and even enlarged.The establishment of the negative crime by the Internet Service Provider must have three requirements: First,the ISP has the obligation to act;Second,ISP has the possibility to act;Thirdly,it is possible for the ISP to avoid the harmful result after performing the obligation.However,Chinese laws and regulations on the connotation of "Internet Service Provider" is not clearly.There are many names of ISP so it is difficult to determine which ISP is the main body of the corresponding obligation stipulated by the laws and regulations.In addition,Chinese laws and regulations didn’t give a variety of ISP in legislation leads to the obligation ISP is fragmentation and repetition,and it also broadens the scope of the obligations of ISP.Finally,because of didn’t give a variety of ISP,the law sets a lot of obligations for all ISP.It doesn’t think about the technological capacity of ISP as well as the possibility of outcome avoidance.The above three reasons together lead to the problem.Therefore,in order to solve it,it’s necessary to clarify the main content of the ISP,unify various terms in legislation and determine the main body of the ISP.Secondly,the law should construct the classification system of ISP because a reasonable obligation based on a reasonable classification of ISP.Finally,different types of ISP provide different service contents and have different technical capabilities,so the judgment of their technological capacity and the possibility of outcome avoidance also depends on their classification system.By clarifying the three elements of the establishment of the crime of omission of the ISP,the scope of criminal responsibility of the omission of the ISP will be restricted and the scope of criminal punishment of ISP will be also avoided.Thus it can achieve the balance between the sanction of the network crime and the encouragement of the development of new technology.