On The Identification Of Criminal Liability Of Internet Service Provider

With the increasing expansion of cybercrime,the concealment and harmfulness of cybercrime are gradually highlighted.The new crime of refusing to fulfill the obligation of cybersecurity management and helping cybercrime activities is added in Amendment 9 of the Criminal Law.This is a new starting point for the conviction of cyberservice providers in China.In this paper,two new crimes are explained by restriction,and the omission criminal responsibility of internet service providers and the criminal responsibility of helping the network crime are discussed in detail.Firstly,the concept of internet service providers is defined as natural persons,legal persons or organizations that use computers or other information terminals and related equipment to provide data information services such as collection,storage,transmission,exchange and processing for the public.Different functions can be divided into network access service providers,network platform service providers,network search engine service providers,and network content service providers.Both at home and abroad have stipulated the civil liability or criminal liability of internet service providers.Secondly,the criminal responsibility of the main network service providers of the two new crimes should be identified.In the crime of refusing to fulfill the obligation of network security management,the obligation of network security management can not be expanded indefinitely.On the premise of the possibility of different types of network service providers controlling information and data,the administrative obligation should be differentiated appropriately.Among them,the obligation of pre-examination and real-time monitoring are suspected to be difficult for the strong,which is not conducive to the development of network innovation.This crime is not a crime of omission,so according to the theory of guarantor status,it can be judged that the service providers of special network platform,the service providers of network search engine and the service providers of network content can be the subject of this crime,and their subjective aspects are intentional.The crime of helping information network crime is that helping behavior is identified as a principal offender,not the sentencing rules of Accessory offender,nor the Principal Offender of the accessory offender.This crime has exceeded the harmfulness of the general network neutral help behavior,but it can not be blindly and comprehensively criminalized.The key to determine criminal responsibility is to restrict the subjective"knowing"and the constitutive elements of"serious circumstances"after objectively imputing the network service provider's help behavior.Among them,presumption is used in the determination of"knowing".That is to say,subjective inference is based on known objective circumstances."Crime" in"knowing that others use information networks to commit crimes"should include crimes that lack the elements of responsibility,but not illegal acts.This article draws lessons from other laws and puts forward five specific suggestions to identify the serious circumstances.