On The Dilemma And Solution Of The Crime Of Refusing To Perform Information Network Security Management Obligation

The original intention of the crime of refusing to fulfill the obligation of information network security management is to regulate Internet service providers who ignore national laws and regulations and conniving at the rampant crime in the name of "technology neutrality" and "technology innocence".However,in the past criminal law provisions and interpretation,due to the existence of vague language and inadequate provisions,there are many issues around the Internet service providers in the academic theory has more disputes.In practice,few precedents reflect that the judicial practice departments have unclear position and understanding of the crime.According to the analysis of the existing cases,it can be found that the charge has three difficulties,including: the obligation of network security management is lack of definition,fuzzy content of administrative preconditions,insufficient differentiation from other charges and excessive competition and cooperation.First of all,the crime witch was established as a blank crime,needs to invoke the obligation content in other laws and administrative regulations.,however,the specific content of the obligation is abstract and general,its covering content too vague and lack of systematic,lead to different laws and regulations to use the concept of overlap,even in specific obligations,the provisions of the conflict,the network service provider disoriented,and judicial practice department,also have to do.In this regard,in the process of determining the management obligation,it is necessary to trace back and confirm the "guarantor theory" and "hazard source supervision theory" as the theoretical basis.On this basis,it is advisable to adopt service type classification standard,technology level classification standard and service public attribute standard respectively.When used to judge the type of network service providers,these three standards are applied in a hierarchical progressive structure,and are gradually classified according to the characteristics of network service providers.According to this standard,it can be classified into four types: network access service provider,network platform service provider,network storage service provider and network content service provider.All ISP should fulfill general obligations and special obligations corresponding to their respective types.Secondly,the procedural requirements of the administrative preposition content of the crime are not clear.At the same time,the negative of administrative pre-procedure also leads to the excessive squeeze of the applicable space of the crime.In view of the question of how to interpret the administrative pre-stipulation,the "order to correct" should be interpreted as an administrative order.In the determination of refusal to carry out,it is necessary to analyze specific problems and take comprehensive consideration from subjective to objective.In the initiation procedure of administrative preposition,preposition procedure should be understood as procedural element,so as to make it independent.Finally,a two-way communication mechanism should be established in which users supervise the regulatory authorities and the regulatory authorities also need to give feedback to users in a timely manner.Finally,the imaginary dilemma of this crime is also reflected in the dilemma of imaginary competition or legal competition.In this regard,we should first make clear the legal interest and subjective fault of the crime.The legal interest protection of the crime ought to be recognized as the obligation of "information network security management " and "citizen information security",because it is placed in the "crime of disturbing public order",so it focuses on the former.In the dispute of the subjective form of this crime,the subjective aspect of this crime should be unified as intentional crime.Specifically,we should pay attention to the differences between the crime subject,the interests of the protection law,the nature of the subjective intention,and the constitutive elements of the crime.