On The Determination Of The Crime Of Refusing To Perform The Obligation Of Information Network Security Management

Refuses to perform the obligation of information network security management of sin is the new "criminal law amendment(9)",the author through the consult China net written judgment that the case has not yet been produced for this crime in judicial practice,and in the case of lack of this crime in judicial instance,the cognizance of this crime may be confused,so the research for this crime is necessary.By introducing the thinking of Kuaibo case,a representative case with great influence on the society,this paper leads to the discussion on the controversial issues existing in the identification of the crime of refusing to fulfill the obligation of network security management of information.This paper is divided into five parts,and its basic contents are summarized as follows:The first part of the paper introduces the case of Qvod and briefly discusses the facts of the case.Secondly,according to the problems involved in the case of Qvod,it discusses the possible arguments in the identification of this crime.Through the discussion of the existing views and disputes,arouse the consideration of this case,lead to this crime.The second part of the paper analyzes the objective aspects of the crime in the constitutive elements of the crime.In the objective aspect of crime,cyberspace belongs to public space.This crime is a crime of omission,which discusses the content of obligations that the network service provider should fulfill.The establishment of the crime of omission requires not only the obligation of criminal law,but also the possibility of omission and the possibility of evading the result.Discussing the situation of whether the neutral behavior of technical help is included in the crime,and concluding that the crime is not the neutral behavior of helping.The third part of the paper analyzes the criminal subject in the constitutive elements of this crime.Foreign regulations on cyber crime are earlier,rich experience,learning from foreign advanced legislative ideas and the actual combination of the crime,the main criminal network service is divided into three categories,namely,network content service provider,network platform service provider and network technology service provider.The fourth part of the paper analyzes the subjective aspects of the constitutive elements of this crime.The subjective aspect of this crime is intent.In addition,it is proved that the standard of the theory of expected possibility should be considered from three aspects: technical ability,supervision cost and supervision result.The fifth part of the thesis is to analyze the difficult problems in the special form of this crime.The form of stopping the crime should start with the initiation of the crime.The initiation of this crime is when the ISP refuses to take corrective measures until there is a real danger of legal interest infringement.There is no state of attempted crime in this crime.As for the number of crimes of this crime,this paper takes the theory of constituent elements as the standard to discuss the situation of one crime and several crimes.