The Identification Of Criminal Ommission Liability Of Network Service Provider

With the rapid development of the network industry,the new type of network crime is increasingly serious,the network service provider as access services,provide comprehensive platform,provide content services,in network space has a pivotal role,its inaction behavior will lead to network crime social harm radiation,so its not as the punishment is due.China’s Amendment(IX)of the Criminal Law promulgated in 2015 added the crime of refusing to fulfill the obligation of information network security management,which initially regulates the criminal responsibility of network service providers for not acting as a crime,but there are many problems in the criminal responsibility of the crime in practice.This paper is divided into four parts: The first part is about the general principle of network service providers and inaction.The meaning and classification of network service providers are expounded,and the understanding of the omission of network service providers is explained,so as to lay a theoretical foundation for the following analysis.The second part expounds the current situation of the network service provider,the basis of the omission and the existing charges.Existing law for the subject of not as crime set up refused to fulfill the obligation of information network security management and help information network crime,for the nature of the two,the former is pure not as the latter is not pure as,for the following two not as a crime of the existing problems in the judicial determination to provide the basis.The third part expounds the problems existing in the identification of criminal responsibility of network service providers in practice.Starting from the existing two charges,the problems existing in the identification.There is no clear stipulation whether the subjective requirements of the crime of refusing to fulfill the obligation of information network security management are intentional or negligent,and the premise of objective inaction is too broad as the obligation.At the same time,the administrative regulatory departments to order the correction notice of this restriction of no more specific provisions,in practice is easy to appear overlapping responsibilities or supervision gaps in the situation.The subject did not notice that there should be differences in the responsibility identification of different types of subject.The identification of the crime of helping information network crime is that the subjective regulation is unclear,and the boundaries of helping behavior are unclear.Finally,the application dilemma of competition and cooperation in practice is discussed.The fourth part is the perfect suggestion of the network service provider not as the criminal responsibility,and clarifies the criminal responsibility of the network service provider not as a crime.Corresponding to the problems existing in the third part,the corresponding countermeasures is put forward.The former is the subjective determination of the intentional mentality and the criminal responsibility identification under the error;the objective aspect introduces the scope of the typed thinking specification obligation,defines and improves the regulation of regulatory authorities on the criminal responsibility identification system under the typed subject.The latter subjectively distinguishes between accomplice and knowing,and objectively defines the boundaries of helping behavior.Finally,distinguish the application rules of competition and cooperation to improve the judicial applicability.