Research On The Judicial Determination Of Network Neutral Helping Behavior

With the development of the Internet and the era of science and technology,network technical services are readily available.The daily and professional neutral technical behaviors provided by network service providers not only facilitate the life and work of the public,but also facilitate crime and gradually play a key role in criminal activities.Different from the traditional neutral help behavior,the net neutrality help behavior has its own uniqueness in the Internet context,which also brings new difficulties in judicial determination of its punishability.It is neutral in the Internet context.Help new topics in the field of behavior.This paper takes the judicial determination of net neutrality helping behavior as the research object,and on the basis of analyzing the current situation of legislation and judicial application in my country,it is found that there are unclear criteria for judging the existence of punishability in judicial determination and the application of the criminal punishment model.It is necessary to clarify the judicial determination standard,reasonably define the scope of punishability,and accurately apply the crime.On the one hand,“technology neutrality” cannot be made a talisman for crime,and on the other hand,attention should be paid to preventing the expansion of criminal identification and protecting the development of network technology.There are four chapters in this paper.The first chapter analyzes my country’s legislation and judicial application of net neutrality assistance.Firstly,it analyzes the basic connotation and particularity,and lays the foundation for the determination of the nature of behavior and criminal responsibility.The development of Internet technology has given the particularity of net neutrality assistance more obvious independence and more prominent social harm,and has also brought new problems in judicial determination that are different from traditional neutral assistance behaviors.Secondly,it introduces the relevant regulations on the punishability of net neutrality helping behaviors in my country,which are mainly reflected in the Criminal Law Amendment IX and related judicial interpretations.The combined criminal punishment model reflects a relatively comprehensive and strict regulatory logic.At the same time,through the judicial practice of the case analysis of the network neutral help behavior in the judicial recognition of the act of helping the existing problems,it mainly focuses on the different judgments of the standard of punishability and the application of the criminal punishment model.These are the two major issues to be addressed below.The second chapter is to discuss the theory of net neutrality to help the behavior of punishability,and analyze it,and get relevant enlightenment from it.The issue of the punitiveness of net neutrality helping behaviors cannot be separated from the theory of the punitiveness of neutral helping behaviors,and sorting out and analyzing foreign and domestic theoretical viewpoints,it lays a theoretical foundation for the punishability of network neutral assistance behavior,and then clarify the position and judgment direction of this paper to determine the punishability.The third chapter is the specific judgment on the punishability of net neutrality helping behavior.According to the behavior mode,the net neutrality helping behavior is divided into action and omission,and the targeted punishment judgment is made accordingly.The key to judging the punishability of net neutrality as a form of helping behavior is to make clear and specific judgmentcriteria for cognizance punishable.Through the analysis of both subjective and objective levels,first of all,the objective standards of the scope of punishability are preliminarily delineated from the objective aspect,including the proposed on the basis of behavior standards,result standards,and causality determination standards,we can try to use the judgment theory of “risk center” for reference to make a substantive judgment on the harmfulness of the behavior,comprehensively investigate the utilization and results of the network neutral help behavior,and the promotion effect of the network neutral help behavior on the criminal behavior and results must reach a considerable degree before it can be determined to have a causal relationship.On the basis of objective identification,this paper takes the subjective identification standard as a further limiting condition to analyze the identification of cognitive elements and will factors.In terms of cognitive factors,the meaning of “knowing well” should be interpreted as knowing well.We can invoke the safe haven rules and the red flag standard rules to prove the judicial presumption of "knowing well".The will factor in the subjective judgment of the punishability of network neutral help behavior should be limited to “laissez faire”.The judgment of the punitiveness of the net neutrality assistance behavior of the omission method is based on the identification idea of what should be done but not what should be done.This paper holds that the information network security management obligations undertaken by network service providers include limited review obligations and cooperation obligations.In judging the possibility,it needs to meet the technical possibility and expected possibility at the same time.The fourth chapter is the judicial application of the criminal punishment mode of net neutrality helping behavior,and analyzes how to choose when the current criminal punishment mode has the problem of co-opetition.It mainly includes the co-opetition of the accomplice mode and the help-behavior mode,the co-opetition of the help-behavior mode and the refusal to perform the legal obligation mode.With regard to the choice of the former co-existing crime,if the network service provider does not know the specific crime committed by the person being committed,it is determined as a crime that supports the criminal activity of an information network;if the specific crime is known,the punishment will be selected according to the severity of the legal punishment.As for the choice of the latter’s co-occurring charges,the focus of the criminal law condemnation is to decide which charges to apply specifically to whether it is an act or an omission.If the behavior goes beyond the normal business scope and does not meet the necessity limit of the behavior itself,the focus of condemnability is to provide positive actions and apply the crime of helping information network criminal activities for conviction and punishment.