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

Internet technology is constantly infiltrating into people’s production and living,producing large of network crimes.In order to effectively reduce the occurrence of network crime,the <Criminal Law Amendment(9)> points at the Internet service provider(ISP),and adds a lot of network crime charges,including the crime of refusing to perform the obligation of information network security management.There are so many obligations for ISP setting in Chinese laws and regulations,such as protecting user information,data retention,etc.,but if ISP does not fulfill such obligations,it will form system loopholes and easily provide direct or indirect help for other crimes.Therefore,the goal of this crime is to regulate ISP’s inaction and maintain network security order.It has been about six years since the implementation of this crime in 2015.However,from the actual situation of judicial practice,the application rate is very low,even after the relevant judicial interpretation is issued,it still can not solve the application problem.There are three controversial focuses on this crime resulting in the low judicial application rate: first,the content and scope of ISP’s first obligation are not clear;second,the standard of the second level obligation is not clear;third,there are conflicts or lack of the second level obligation without corresponding settlement mechanism.The first problem can be solved by classifying the prior obligation.First of all,it classifies the prior obligation and ISP respectively,and then endows each kind of ISP with corresponding prior obligation;Secondly,it defines the scope of prior obligation,which includes not only laws and administrative regulations,but also lower level laws and regulations that are clearly authorized by laws and administrative regulations;Finally,the principle of legal interest protection is used as a supplementary mechanism to determine the prior obligation.To solve the second problem,we should start from three aspects: entity rationality,formal legitimacy and time node of fulfilling obligations.Substantive rationality requires that the content is legal and clear,and it has the possibility of avoiding harmful results and fulfilling obligations.Formal legitimacy puts forward procedural requirements for the regulatory body,notification method,administrative defects and objection handling.In addition,the results of judging whether an ISP violates the second level obligations will be different with different time nodes of fulfilling obligations.It can be used as a supplementary mechanism to solve the third problem.It can be an important supplement to this crime to improve the complaint channels,urge the regulatory authorities to exercise administrative responsibility,and supervise and rectify the omission of ISP.