Research On Crimes Of Refusing To Perform Information Network Security Management Obligations

In order to better regulate the behavior of network service providers who are lazy in fulfilling the obligation of information network security management,a new crime--the crime of refusing to fulfill the obligation of information network security management has been added in the Amendment(IX)to the Criminal Law.However,due to the vague identification of the subject type of this crime,the unclear boundary of obligations,the unclear provision for the cause of the crime,the form of the crime is controversial and other problems,this crime in the judicial practice into a "difficult to apply" predicament.On the basis of exploring the basic theory of the crime of refusing to perform the duty of information network security,this paper takes the four controversial focuses of Zhu's illegal VPN business case as the entry point to deeply discuss the constitutive elements of the crime and how the crime should be convicted and sentenced in judicial practice and other difficult issues.First of all,the main body of the crime of refusing to fulfill the obligation of information network security management--network service provider,should be considered to only include the network access service provider,network storage service provider and network search engine service provider,excluding the network content service provider.Secondly,according to the source of statutory obligations,under the premise of satisfying the possibility,the theory of supervision guarantor is introduced,and the information security management obligations of the network service provider in this crime are summarized as the obligation to protect information security,the obligation to control illegal information,the obligation to cooperate with law enforcement and the obligation to guarantee network security.Thirdly,for the provision of the crime,the principle of proportion should be adopted to constrain the "other serious circumstances",adhere to the same kind of rules of interpretation,and whether the subject is profitable does not affect the conviction.Finally,the subjective form of this crime is intention,including direct intention and indirect intention,which should exclude the negligent offense,and the illegality cognition error can not obstruct its responsibility.