拒不履行信息网络安全管理义务罪探析

Analysis on Crime of Refusing to Perform the Obligation of Information Network Security Management

依据我国《刑法》第286条之一,构成拒不履行信息网络安全管理义务罪必须满足"经监管部门责令改正而拒不改正"这一条件,对这一条件的误解,致使本罪有束之高阁的风险。责令改正而拒不改正属于客观的处罚条件,而不属于不法要素,也不属于责任要素。责令改正不是行政处罚而是行政命令,本罪的成立不以行政处罚为前提条件。监管部门可以口头形式作出改正责令,而不仅限于书面形式;网络服务提供者不具备改正能力,不能成为免责事由。

According to one of the 286 th articles of the Criminal Law, the crime of refusing to fulfill the obligation of network security management must meet the condition of "being ordered to correct by the regulatory department but refuse to correct". The misunderstanding of this condition leads to the risk of this crime being shelved. It is an objective punishment condition to order correction and refuse to correct it, and it is not an illegal element, nor a responsibility element. It is not an administrative punishment but an administrative order to order correction. The establishment of this crime is not based on administrative punishment. Regulatory authorities can make corrective orders in verbal form, not just in writing. Network service providers who do not have the ability to correct should not be excused.