| With the rapid development of today,the human society has been inseparable from the network,such as online office,online recruitment,online payment,online shopping and so on.Information network is like a double-edged sword,the good side is to bring convenience to the society,the bad side is a sharp increase in the number of cyber crimes.Information network has the characteristic of concealment,so it brings the resistance to the detection link of the public security department.The criminal USES the information network to carry out the telecommunication network fraud,the network opens the casino,spreads the obscene article to make a profit and so on.It is urgent to establish new charges to regulate the behavior of Internet service providers.In recent years,the increase of Internet criminal activities has led to the addition of "crime of refusing to fulfill the obligation of information network security management" in the amendment to criminal law(ix)in 2015 to better regulate Internet service providers.In2019,the supreme people’s court and the supreme people’s procuratorate issued the interpretation on several issues concerning the application of law in criminal cases such as handling illegal use of information networks and assisting criminal activities of information networks(hereinafter referred to as the interpretation),which mainly stipulated the judicial application of theconstitutive elements of this crime.Based on the fact that there are few cases involving this crime in judicial practice,the theoretical research on this crime has just been launched and there are some disputes on some issues.Therefore,it is necessary to study the relevant issues of this crime in combination with the interpretation and the theoretical research views.This paper mainly studies the basic problems of three aspects of this crime.Firstly,it analyzes the constitutive elements of the crime of refusing to perform the obligation of information network security management,and makes provisions on the constitutive elements of the crime in the "interpretation".This paper analyzes the provisions of the "interpretation" in combination with the current academic perspective.Second,this paper discusses the crime form of this crime,including completed crime and attempted crime,omission crime of this crime,joint crime of this crime,imagination concurrence crime and implicate crime.Finally,this paper analyzes the boundary between this crime and other crimes,and compares the boundary between this crime and crime of helping information network criminal activities,crime of illegal use of information network,crime of violating citizen’s personal information,etc.,and then makes clear the applicable scope of this crime in judicial practice. |
