Research On The Criminal Responsibility Of Network Service Providers

In the context of the information age,cyberspace is not a lawless place,and network service providers need to bear the corresponding criminal responsibility.Under the current legislative system in our country,for the criminal liability of network service providers still encounter unclear relationship and unclear boundaries on the application of criminal accusation.To limit the responsibility scope of network service providers accurately and reasonably.Clearing responsibility boundary of network service providers,clarifying the responsibility type of network service providers have a positive practical significance.To specify,this article contains three sections:The first part mainly covers the fundamental issues of the criminal responsibility of network service providers.The traditional accomplice theory has difficulties under the context of network crime,and in the context of the risky society,legal benefit protection also presents abstract and pre-oriented characteristics.Under the rapid development of the Internet industry,it is necessary to strengthen the regulatory responsibility of network service providers,and it can be predicted that in the future,the focus of cyberspace governance will also shift from individual responsibility to platform responsibility.To explore the criminal responsibility of network service providers,we cannot be separated from the understanding and grasp of the concept of network service provider itself.Unclear connotation and extension are one of the obstacles of network service providers.The network service provider includes both units and individuals,including content service provider and various intermediary service providers,the latter can be divided into network access service provider,network cache service provider,network information storage service provider,network search or link service provider.From the perspective of criminal responsibility evolution of network service providers,the independence of network service providers presents a trend from weak to strong.From the weakening of the contact to "Judicial principal offender of helping behavior",to "Legislative principal offender of helping behavior ",eventually formed the network service provider accomplice responsibility,judicial principal offender of helping behavior and legislative principal offender of helping behavior.The second part discusses the criminal responsibility with neutral helping behavior theory."Neutrality" is not only objective neutrality,but also subjective neutrality.The former refers to the helping behavior meeting the standards of social life and the specific requirements in the job business field,while the latter refers to the helping behavior does not have an illegal purpose,no understanding of the criminal intention of others,and no subjective intention of helping the crime.For network neutrality helping behavior,the author believes that it can be further distinguished between three types of helping behaviors intended to be used illegally,helping behaviors that are easy to be used illegally,and that are used illegally occasionally.In terms of the crime of helping information network criminal activities,we should adhere to the position of "relative principal offender of helping behavior".On the one hand,we adhere to the basic positioning of helping offenders,and on the other hand,we also affirm the independence of network helping behavior.The crime of helping network crime delinquency requires subjectively committing crimes when fully aware others using information network.In terms of the concept of "fully aware",both the general principle and the specific principle are only the content of cognitive factors and are not involved in the form of guilt."Fully aware" is not the same as intentional psychology,and "foresee" is not only in the psychology of negligence.For the understanding of the word "crime" should use amplified interpretation,interpreted as the elements of harmful behavior,and as knowing object "others" must be specific,clear individual,but not the abstract concept of someone or some people.It is difficult to provide a reasonable basis for limiting the punishment scope of online help behavior by trying to exclude the behavior attribute of help behavior or the normative relationship between help behavior and principal offender behavior and results.Objective point of view cannot provide practical standards and legitimate basis to limit net neutrality helping behavior,while the subjective point of view is more reasonable.The third part mainly discusses the criminal responsibility of network service providers when inaction.As far as the obligation source of duty of act,it is difficult for formal obligation to play a restrictive role,and the guarantor status of the network service provider should be tested and judged from the perspective of substantive obligation.Neither the obligation to prevent the risk of legal interests arising from the prior act and the obligation to supervise the dangerous behavior of the supervised person can constitute the source of its obligations,and the obligation of the network service provider arises from the prevention obligation arising from the control of the dangerous field of the legal benefit.The so-called "information network security management obligations" contains illegal information disposal obligations,user information security obligations,technical support and assist in law enforcement obligations,identity information authentication and user log retention obligations,network service and network facilities security management obligations."Shall" answers the question of the basis of duty,while "can" answers the question of capacity.The judgment of duct of act should include double standards of possibility in fact level and possibility in norm level.The core of the former lies in whether the Internet service provider has the technical ability to perform specific obligations,while the core of the latter lies in the measure of legal interests.