Research On The Judicial Application Of The Crime Of Refusal To Fulfill The Obligation Of Information Network Security Management

At present,cybercrime brings many challenges to criminal legislation and justice,and the Criminal Law Amendment(9)has established three new crimes of cybercrime,one of which is the crime of refusing to fulfill the obligation of information network security management.More than five years since its establishment,once reduced to a "zombie clause ".In order to break the deadlock in judicial application and clarify the scope of punishment,in 2019,the Supreme Court and the Supreme Procuratorate issued the interpretation of some problems on the applicable laws in criminal cases such as handling illegal use of information networks and helping information network criminal activities,which made clear the subject scope,the standard of admission and the application of relevant laws of the crime of refusing to fulfill the obligation of information network security management,but failed to respond to the controversial determination of "ordering correction but refusing to correct ",the scope of the obligation of information network security management,and the problems existing in the form of subjective sin.This paper explores the determination of the crime from the above three elements.In addition to the introduction,this paper is divided into three parts:The first chapter mainly discusses how to identify the network service provider "ordered to correct but refused to correct" by the regulatory authorities.First of all,this paper expounds the theoretical dispute of this element in the system orientation,and through comparing and evaluating the advantages and disadvantages of various viewpoints,it is reasonable to limit the requirement of "ordering correction and refusing to correct" to the objective elements of the constituent elements.Secondly,based on the nature of the crime as a pure omission,this paper puts forward the subjective and objective criteria for determining that the network service provider "refuses to correct ",and the objective criteria should be based on the technical ability.Subjective criteria should be expected possibility as the yardstick,combined with the result avoidance possibility comprehensive judgment.The second chapter mainly discusses one of the elements of the objective elements of this crime," Information network security management obligations" scoping and allocation of obligations.First of all,it is clear that the concept of information network security management obligation refers to the obligations stipulated by laws and administrative regulations,and combs the classification of this obligation in existing laws and administrative regulations.Secondly,it points out that there is a lack of typology,clarity and systematization in the regulation of information network security management obligation,and puts forward the idea of typology obligation setting in view of this problem.The standard of reasonable allocation of obligation is determined by the type of network service provider and the dual standard of information control ability.The third chapter mainly discusses the differences in the form of subjective sin,sums up the positions of direct intention,negligence and vague sin,and gives positive evaluation to the intentional theory of crime on the basis of refuting negligence and vague sin.On the basis of affirming the intention of the crime,the specific contents of the cognitive factors and the will factors in the intention of the crime are determined.The article holds that the cognition content of the actor not only includes the understanding of the behavior that violates the legal obligation and the possible result,but also the corrective measures taken by the supervision department and the nature of the behavior that refuses to correct.The understanding of the actor must be specific and reach a high degree of understanding.On the level of will," laissez-faire" mentality is more common in practice.The "laissez-faire behavior" of network service providers can not be confused with "inaction behavior" and "help behavior ",and should pay attention to the boundaries of the three.