Research On Security Obligation Of My Country’s Internet Service Providers

The duty of security guarantee is a relatively mature system in our civil law.The newly implemented "Civil Code" further clarifies the obligations of cyber security.It can be seen that the scope of application of security guarantee obligations is gradually expanding.The continuous innovation of information technology has made people’s social life constantly enriched by the development of the Internet.The development of the network economy has brought people convenient services and has also caused some new network security issues.Network security incidents are frequent,and network service providers The safety guarantee obligation of the People’s Republic of China has also aroused widespread public concern.In the first part,this article is based on the fact that "Internet +" is a hot topic in today’s social law and practice circles,and it has been constantly changing the existing legal norms since its birth.Combining the "Civil Code" and "E-commerce Law" and other relevant laws,starting from the concept,it is clear that the network service provider is a legal concept,and the scope of the security protection obligation of the network service provider mainly includes the protection of personal rights and property rights,my country’s network service providers’ security obligations are mainly classified into pre-prevention obligations,in-event elimination obligations,and post-event remedial obligations.Infringements in cyberspace have new characteristics that are different from traditional torts,including the subject of the infringement,the object of the infringement,the location of the infringement,the mode of infringement,and the nature of the liability for infringement.It is reasonable to extend the application to cyberspace,because the security obligation in physical space is applicable to specific service places,and the service provider needs to assume the obligation to protect the personal and property safety of the service counterparty,and the network service provider The safety guarantee obligation of the company is highly similar to the safety guarantee obligation in the real space,which conforms to the inherent logic of the establishment of the safety guarantee obligation system.Fully grasp the background of network security guarantee obligations and the theoretical knowledge of network service providers’ security guarantee obligations system.The third part analyzes and demonstrates the difficulties faced by China’s network service provider security system at this stage with the support of cases.Through searching a large number of judicial cases,it summarizes the several points that need to be paid attention to in the application process of the network security guarantee obligation system.Dilemma: First,the legal status of the subject of the obligation is unreasonable,and the identification of the network service provider as the seller/joint party,lessor,and intermediary service provider is inappropriate;second,the provision of security review obligations There are shortcomings,the passive review regulations lack clear standards,judicial practice is not clear about the "effective notice" standard in the "notice-delete" rule,and the delay of passive review makes it difficult to make up for the loss of network infringement.With the emergence of new forms of online activities,it is no longer possible to meet the need to regulate online infringement by relying only on passive review methods,and the infringement liability of my country’s Civil Code lacks clear provisions on the obligation of active review.The "E-Commerce Law" stipulates that in the field of food and services related to life and health,network service providers shall have the obligation to actively review the qualifications of operators on the platform.Although this provision fills the legal gap in the obligation of active review,There are still shortcomings;third,the law’s definition of responsibility is vague,and the provision of "corresponding responsibility" for violations of security obligations,there are differences in judicial application,and there are different views on pluralism and unity.However,the author supports the view of pluralism.According to the specific situation,the form of responsibility that the network service provider should bear is different.It can be joint and several liability,supplementary liability or even share-based liability.In response to the above problems,the author made a reason analysis from the perspectives of practical constraints and theoretical constraints.The author believes that in practice,the limitations of network supervision technology and the uncertainty of service objects have restricted the performance of network service providers.The theoretical constraints of the duty of security protection stem from the conflict between the civil law system and the constitutional system.The existing regulatory methods in the civil law tort liability system cannot cope with the new changes brought about by Internet activities,and it is difficult to balance the civil rights and interests of Internet activity participants.The relationship with the principle of freedom in the constitutional system.In the fourth part,four reasonable suggestions are put forward in view of the dilemma of the above-mentioned network service provider’s security guarantee obligation system.The author believes that,first of all,it is necessary to clarify the legal basis for China’s network service providers to undertake security guarantee obligations.The number of network users is growing,and network disputes are increasing.From the legislative clarification of relevant systems,judicial application has a legal basis.The most fundamental solution;secondly,the legal status of the subject of the obligation should be reasonably determined,and the division and determination should be made according to the degree of participation and control of the transaction by the network service provider;thirdly,the judgment of the network service provider’s security guarantee obligation should be clarified The standards are reasonableness standards,risk controllability standards,and standards for comprehensive consideration of influencing factors;fourth,the standard for "effective notification" in passive review should be clarified,and the validity of the right holder’s request to delete the notification is whether the network service provider bears the infringement.The basis of liability;Fifth,it is clear that the subject of the obligation should adopt the rules and principles of fault liability in breach of the obligation of safety protection.The above suggestions are intended to provide guidance and reference for judicial practice.The main research method used in this article is the case study method.After analyzing with case support,it can more intuitively illustrate the current status of the application of the security guarantee obligation system of network service providers in judicial practice.Through searching a large number of judicial cases,we summarized the focus of disputes that need to be grasped during the application of the network security guarantee obligation system,integrated into the typical judicial cases of network service providers assuming security guarantee obligations in recent years,and combined case analysis to demonstrate the safety of network service providers.There are some difficulties in the guarantee obligation system at this stage,and the reasons for the problems are analyzed,in order to find a way out for the correct application of the network service provider’s security guarantee obligation system.