Research On The Criminal Security Management Obligation Boundary Of Internet Platform Operators

The crime of refusing to perform the network information security management obligation is a bold innovation of China criminal legislation in the field of network crime,but it has not played the expected regulatory effect in the judicial application.With the advent of the Internet 3.0 era,the laws and administrative regulations in the field of information network are also becoming more and more improved,providing a good background for the activation of the crime of refusing to perform the network information security management obligation.It is urgent to delimit the boundary of the security management obligation in combination with the guidance from current criminal policy and further understanding of the legal interests protected by this crime.This paper is going to define the content of criminal obligations that the network service providers represented by the Internet platform operators should undertake,so as to clarify the substantive difference between administrative violations and criminal crimes,and promote the Internet platform operators to establish and improve the compliance mechanism related to security management to achieve comprehensive and forward-looking protection of the information network security management order.This paper is divided into five chapters.Chapter One is the analysis of the crime of refusing to perform the network information security management obligation.First of all,this paper defines the concept of "Internet platform operator",which is the research subject of this paper.Then,under the " Quantitative and qualitative difference theory",it is argued that the criminal obligation of this crime should be the obligation of safety management rather than the obligation of cooperation and correction.Finally,it explains the role of the constituent elements of this crime in conviction and sentencing.Chapter Two is the practical necessity of clarifying the boundary of security management obligation and activating this crime.In terms of external factors,the connection between administrative law enforcement and criminal investigation is not smooth,and the definition of the security management obligation of the Internet platform is also challenged by databased crime.In terms of internal factors,the Internet platform has gradually broken through its passive and instrumental intermediary role and participated in various activities in cyberspace,which may lead to substantial changes in the content of security management obligations of the Internet platform.Chapter Three is a systematic classification of the security management obligations of network service providers in laws and regulations from China and worldwide.Firstly,it refers to the legislative characteristics and interest balance tendency of the United States,the European Union and Germany in the setting of responsibility for Internet platforms,and learn from their advanced legislative experience.Secondly,it classifies the pre-emptive obligations in China’s relevant laws and administrative regulations,and points out the shortage of China’s existing Internet legislation in systematicity and supervision.Chapter Four is a hierarchical reinterpretation of the legal interests of the information network security management order.This paper compares the representative views of the criminal law academia on the legal interests protected by the crime of refusing to perform the information network security management obligation,and puts forward that the connotation of legal interests includes two aspects.One is the security management order in which the network service providers should ensure their services are not used for illegal crimes by assistance to law enforcement,while the other includes deep network information safety and public information order.Chapter Five defines the criminal security management obligations boundary of the Internet platform operators.Firstly,the standard to defining obligation boundary consider both the legal interest behind this crime and criminal policy in China.According to the purpose of legal interest protection,the scope of information network security management obligations is determined,and the corresponding obligation system is constructed.Finally,the Internet platforms are classified and graded according to the standards,and the criminal obligations of different Internet platforms are defined.