Research On The Elements Of "Correction" For The Crime Of Refusing To Perform Information Network Security Management Obligations

The offence of refusing to implement information network security management was first introduced in the Criminal Law Revision(IX)in 2015.The purpose of its establishment is to solve the increasingly severe network information security crime,force network service providers to consciously perform management obligations through the deterrent effect of criminal law,and maintain a good Internet environment.However,there are few applicable cases of this crime in judicial practice,and it has the risk of being reduced to zombie crime.Although some of the issues of this crime are explained and clarified in the "Explanation on certain points in relation to the application of law in dealing with cases of illegal utilization of information network offence",for instance dealing with illegal use of information network crime and facilitating information network crime in 2019,However,combined with Chinese legislation and rules on internet service providers and the administrative preconditions of the crime and other issues of dispute.In this regard,This article discusses in detail the contentious implications in the jurisdictional application of the offence.In this thesis,The first chapter focuses on the refused to information network security management duty crime problem defines the basic concept of comprehensive considerations based on law,define the legal orientation of this crime and the constitutive requirements,to refuse to perform the duty to manage information network safety at the same time,the article briefly analyzes the constitutive requirements of sin will be divided into the correct requirements and other requirements.The second part,this thesis focuses on refuses to perform the duty to manage information network safety management for sin,first of all,by analyzing the case of retrieval way online for this crime in the written judgment of case retrieval,classification to discuss ways to similar cases between qualitative and different classified summary of punishment,tease out "correction factors" caused by practical difficulties mainly includes the following three aspects,The first is the necessity of the establishment of administrative preconditions;the second is the conflict of management obligations of ISPS in the pre-law;the third is that the judicial determination standard of "refusal to correct" is too strict.The third part of this thesis focuses on the theoretical orientation of administrative prerequisite.First of all,looking at the nature of administrative preconditions from the perspective of crime constitution,the theoretical circle can be roughly divided into six different theories.Of course,these theories have certain defects,so they should be comprehensively understood.Secondly,the rationality of the second part of the problem is analyzed one by one.Finally,the thesis emphasizes the position of administrative prerequisite from the form level and the substance level respectively.Formal notice way is reasonable,substantive level order content is specific and clear.The fourth part of this thesis mainly explains "the refusing to rectify" components of the offense of refusing to perform message network security administration obligations from the standpoint of intentional rationality and justifies the reasonableness of the purpose of criminal regulation of network service subjects from the perspective of interpretation theory.This crime is in accordance with the rational criminal law system of Roxin,and it is emphasized that this crime should be interpreted in a limited way and its application scope should not be expanded.For the determination of "refusal to correct",this thesis mainly discusses from subjective and objective levels.Firstly,"express" cannot be taken as the only standard.Secondly,when the network service subject delays or refuses to correct,it has obviously constituted subjective intention,and the subjective state should be supported by objective behavior.The damage consequence of "refusal to correct" is comprehensively identified as the "refusal to correct" behavior of the network service subject.