| "This is the best and the worst era" is the most appropriate way to describe the era of information explosion.The development of sharing Internet technology impacts the traditional way of life,simplifies and facilitates our way of life to a certain extent.But it comes the accumulation and increase of various risks.Information data is the basic power to support the operation of the Internet,so it is as precious as oil in the Internet era.There are interests and risks.Driven by huge interests,there are endless illegal and criminal behaviors about information data.As a typical representative of information data,personal information interweaves with the Internet,resulting in a lot of new crimes.How the criminal law should face the new type of personal information crime has become the current frontier and controversial topic.Focusing on this issue,this paper mainly discusses how criminal law should deal with the increasing risk of personal information security under the risk society from two aspects of internal system construction and external legal coordination.Specifically,it is divided into the following parts:First,the connotation of personal information and its right and attribute.Because the main object of this paper is personal information,describing the whole picture of "personal information" is the basis of the article.At the same time,the concepts of personal information,personal privacy and personal data are similar.It is necessary to clarify the relationship between them and finally locate the legal interest attribute of personal information in criminal law.This paper dissects personal information from the concept,characteristics,value and type of personal information and so on.The most important is the independent value of personal information.The premise of personal information research is that personal information has independent research value.If personal information can be covered under other concepts,it is not necessary to study.Therefore,whether personal information has independent research value is the logical starting point to promote the legal research on personal information.The discussion of independence is inseparable from the relationship between personal information and privacy.Through the comparison of concept,scope and characteristics,personal information and personal privacy are different concepts.First of all,personal privacy includes not only information privacy,but also personal space,personal activities and other life affairs that are not information but do not want to be known by the outside world.Secondly,the narrow sense of personal information refers to the type of information that can directly or indirectly identify specific individuals.Identifiability is an important standard to determine the scope of personal information in a narrow sense.Among these information types,some information is not within the scope of privacy.For example,personal job information,which can indirectly identify specific individuals,belongs to the type of personal information.However,in order to meet the needs of public management,personal job information is often made public and does not belong to personal privacy.Finally,personal privacy and narrow sense personal information can be summed up as cross relationship,while the cross part is personal information data about personal privacy.To clarify the attributes of personal information is to figure out the rights and legal interests related to personal information.In the Internet era,personal information is no longer the "privacy" tightly held by the information subject.On the contrary,information subjects prefer to use their personal information to obtain more convenient services with security.The separation of ownership and use right of personal information means that personal information is no longer the object of personality right in the traditional sense,but the object of property attribute that can be separated from information subject.The risk of personal information security in the industrial chain of personal information circulation is not only related to the information subject,but also to the information users.That is to say,the prevention and control of personal information security risk needs to start from the information subject and the information user.Looking at the relevant legislation of personal information in China,different from the order of other rules which is from pre law to criminal law,the legislation of personal information risk prevention and control begins with criminal law then pre law which is different order.Personal information has different legal interest attributes in different processing stages,that is,personal information has different legal interest levels.This paper divides the legal interest of personal information into two levels.The first level is personal legal interest of personal information,including personality legal interest and property legal interest.Specifically,the recognizability of personal information represents a person’s unique personality,which should be protected by the right of personality.The protection of personal information through the right of personality is from the perspective of civil rights.Then corresponding to the legal interests of criminal law in China,the fourth chapter is about the crime of infringing the personal rights and democratic rights of citizens,which is a chapter to protect the legal interests of specific personality rights.At present,the crime of infringing personal information,which is a special crime to protect personal information,is put in this chapter.So the legal interest of personal information has been recognized.In addition,with the advent of big data era,personal information,as an important part of information resources,also participates in the operation of network economy.Due to the separation of ownership and use of personal information data,personal information becomes a commodity that can be negotiated.At this time,the view that personal information is the object of personality right can not adapt to the current situation of data circulation.Confirm the property attribute of personal information is reasonable.On the one hand,personal information data conforms to the definition of virtual property,which has been recognized as "property" in law.On the other hand,the recognition of personal information property attributes is good for the protection of personal information security risks.The second level is the public legal interest of personal information.When the users of information are enterprises or governments,they will collect and generate a lot of information according to their own management needs,and the accumulation of these information may involve the public interest.At the same time,due to the popularity of the Internet,the number of personal information held by some network giants is amazing.If there is a security leak,it may also involve the public interest.In addition,personal information security may also involve national legal interests.Information security is no longer limited within the country because of the borderless network,but has risen to the level of national security.The cross-border flow of personal information and personal information involving state secrets are all related to national security.Second,the development and comparison of personal information criminal legislation.This part mainly discusses the development process,legislative concept change and legislative evaluation of personal information criminal protection in China.At the same time,it also combs the relevant legislation of the United States,the European Union and other representative countries,summarizes the excellent legislative experience,and draws lessons and internalizes the personal information legislation of our country.Specifically,the personal information legislation of our country takes Amendment(VII)to the Criminal Law as the dividing line.Before Amendment(VII)to the Criminal Law,the criminal law protection of personal information was mainly in an indirect way.There is no distinction between personal information and privacy,and the consequences of infringing personal information are basically limited to the invasion of privacy.Therefore,the crime of infringing privacy has become an important basis for protecting personal information,such as the crime of illegal search,the crime of illegal invasion of residence and the crime of infringing the freedom of communication.At the same time,limited by the development level of science and technology at that time,information carrier is still the traditional tangible thing,and information often appears in combination with information carrier,so personal information does not highlight its own independent legal interest attribute.There are quite a number of legislation to protect information in our criminal law,that is,information legal interest crime.This kind of crime will protect a small part of special information independently.The main legal interest protected by this kind of crime is information legal interest,not personal information legal interest,but the object of crime may involve personal information.Personal information may be involved in the crime types that protect national security information legal interest and order information legal interest.At the same time,there are also some crimes in our criminal law that may involve personal information,such as evidence crimes and document crimes.It can be seen that personal information does not have an independent legal interest status,generally through indirect subsidiary protection of other types of crime at this stage.In the Amendment(VII)to the Criminal Law,the crime of illegally obtaining citizens’ personal information and the crime of selling and illegally providing citizens’ information are added.The behavior of infringing personal information has become an independent type of crime,but because the two crimes belong to identity crime,the scope of punishment is relatively narrow.With the development of information network,the crime of illegally obtaining personal information of citizens and the crime of selling and illegally providing personal information of citizens are revised and merged into the crime of infringing personal information of citizens in Amendment(IX)to the Criminal Law.The subject of the crime becomes the common subject,and the scope of punishment is further expanded.At this point,the way of protection of personal information in criminal law is direct protection.In addition,the criminal law also adds new types of crime to indirectly protect personal information,mainly represented by information network crime.For example,the crime of refusing to fulfill the obligation of information network security management.With the rapid development of information network technology,the concept of legal protection of personal information data has changed greatly,including that the legal interest of personal information is independent of privacy as a new type of legal interest of criminal law protection;the criminal legislation of personal information also breaks through the traditional concept of criminal law modesty and implements the concept of "secondary illegality".However,there are still some defects in the legislation of the crime of infringing the personal information of citizens.Specifically,the protection of public legal interests of personal information is not enough.At present,the public legal interest of personal information is mainly in the form of subsidiary protection.In Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Infringing on Citizens’ Personal Information(hereinafter referred to as the Judicial Interpretation of Personal Information),there are many standards on conviction and sentencing that are consistent with the public legal interest connotation of personal information.For example,"causing significant economic loss or adverse social impact" is based on "public legal interest".At present,the types of crimes involving the independent protection of public legal interests of personal information are the crime of stealing,buying and illegally providing credit card information.In order to provide a more powerful guarantee for the financial order,the Amendment(V)to the Criminal Law adds the crime of stealing,buying and illegally providing credit card information.Personal credit card information is closely related to financial order,and its public legal interest attribute is important and protected independently.However,personal information contains all the information that directly or indirectly identifies an individual,which all has the attribute of public legal interest.It can be seen that only the public legal interest of personal credit card information is protected independently at present,while the public legal interest of other personal information still mainly depends on the subsidiary protection form of the crime of infringing personal information of citizens.In general,the criminal protection of the public legal interests of personal information is still mainly subsidiary protection,which is inadequate and unsatisfactory.The protection of personal information is no longer satisfied with the privacy protection mode,but needs to establish the public order of data utilization and regulate the security risk of personal information.At present,the criminal law protection of personal information still stays in the traditional path of rights protection,and has not formed the corresponding risk control system.There are serious problems,like,the relationship between the protection of individual legal interest and public legal interest is not balance.The connection between pre-existing law and criminal law is not smooth,and the criminal responsibility system is not strict.This part then combs and compares the personal information legislation of Germany,the European Union,the United States and Japan,in order to provide reference for our legislation.After comparison,it is of great significance to our personal information protection legislation in the following aspects.First of all,the improvement of the pre law protection of personal information.No matter in Europe or the United States,it is great importance to protect individual privacy,especially the basic protection of personal information,that is,civil and administrative protection.At present,the civil and administrative protection of personal information in China is fragmented and low-level.Therefore,our country should pay attention to the perfection of the preposition law,which can not only perfect the legal protection system of personal information,but also provide sufficient preconditions for criminal protection.Secondly,the criminal law involves in the diversification of personal information protection.Although each country has different path,different accusation and crime constitution,different penalty and regulation means in the aspect of criminal law protection of personal information,they can be regarded as the same way in the aspects of background and function,which are basically based on the concern of the development of science and technology for the disclosure and illegal use of personal information.Almost all countries’ criminal legislation are around this starting point.According to the actual situation of their own countries,they regulate behavior from the acquisition,collection,custody and use of personal information and other different stages of intervention.Finally,the scope of personal information is expanded and subdivided.Taking the EU as an example,the scope of personal information is clearly defined in EU legislation.Personal information is divided into "general personal information" and "sensitive personal information" through technology and standards.China can also classify the types of personal information,different types of personal information correspond to different protection modes.The subdivision of personal information is also conducive to clear the reasonable entry boundary of the crime of infringing personal information of citizens.Third,the analysis of the constitution of the crime of infringing personal information.This part mainly analyzes the legal interest,behavior and serious elements of the crime.First of all,the legal interests of the crime of infringing personal information of citizens are very controversial,including the legal interests of privacy,the legal interests of information self-determination and the legal interests of personal information.This paper holds that the legal interests of this crime are dual,including the right of personal information and the order of information management.Specifically,with the improvement of civil law and administrative law,personal information is no longer the same concept as privacy.The right of personal information has been clearly recognized as a civil right.In the General Provisions of the Civil Law of the People’s Republic of China(hereinafter referred to as the General Principles of Civil Law),the chapter of civil rights clearly states that a natural person has the right of personal information,but the power and nature of the right of personal information are not specified.According to the relevant legislation,the right of personal information is a new right.The right of personal information is a kind of new comprehensive personal right which includes personal interests and property interests.In the theory of criminal law legal interest,personal information right is a kind of personal legal interest.In addition to the right of personal information,the legal interest of the crime of infringing upon citizens’ personal information should also include the order of information management.In addition,the balance between personal legal interest and public legal interest is needed.In the case that civil law is more inclined to provide strict protection for the rights related to personal information,public laws such as administrative law and criminal law should be more inclined to the protection of public order.This can balance personal legal interest and public legal interest.At the same time,because the national legal interest on personal information can be included in other charges,it is no doubt a waste of legislative resources to add new crimes.Therefore,the order of information security management should be one of the legal interests of the crime of infringing upon citizens’ personal information.Secondly,this chapter bases on criminal behavior,specifically divided into the criminal behavior of illegally obtaining personal information,illegally selling,providing personal information and illegally using personal information.Specifically,first of all,the criminal acts of illegally obtaining personal information include stealing personal information and obtaining personal information in other illegal ways.In the aspect of stealing personal information,the act of stealing personal information through computer system violates the crime of illegally obtaining data from computer information system and the crime of infringing personal information of citizens,which should be Imaginative Joinder of Offenses.At the same time,the illegal control of computer system is often used as the means of illegal access to information and data.the relationship between them is selective charge in criminal law.Therefore,it is necessary to judge whether the means can constitute an independent crime based on the specific cases.In other illegal ways to obtain personal information,according to the criminal law of our country,"illegal access" not only means "stealing",but also means "illegal access to personal information".The provision of "illegal acquisition by other methods" belongs to Miscellaneous Provisions.In order to prevent the abuse of the provision,we should limit the application of the clause from the perspective of homogeneity.Secondly,it discusses the relationship between the illegal sale and providing personal information,as well as the understanding of "violation of relevant state regulations".On the one hand,the behavior of "sale" often has the subjective purpose of making profits,and the object of sale is special.On the other hand,the act of "offering" includes paying and free offering.Therefore,they are different.In addition,this paper holds that "violating the relevant provisions of the state" is blank description of crime which is a cause to prevent illegality and has a substantial impact on the understanding of illegality.Finally,this chapter discusses the crime of illegal use of personal information.The combination of illegal use of personal information and downstream crimes is very common.On the one hand,the illegal use of personal information has not been regarded as a typical behavior in the crime of infringing on citizens’ personal information,but as a means of other crimes.It can be evaluated by other crimes.For example,the crime of stealing and deceiving property by using personal information,the crime of infringing personal body by using personal information,and the crime of insulting and slandering by using personal information.Although some acts of illegal use of personal information can be regarded as the preparatory acts of downstream crimes,the preparatory offence can be lighter,mitigated or exempted from punishment than the accomplished offence.And if the circumstances are obviously minor,the harm is not considered as a crime.It can be seen that the illegal use of personal information as a preparatory offence or behavior,may not be considered as a crime or exempt from punishment.However,the illegal use of personal information is a serious social harmful act,which should be the focus of the prevention of information security order risk.It will obviously lead to improper punishment if only as a preparatory act for other crimes.there are still a large number of illegal use behaviors that can not be evaluated by downstream crimes in real life.Therefore,illegal use should be regulated by criminal law.On the one hand,the social harm degree of illegal abuse is no less than other acts;on the other hand,the illegal use of personal information is a typical type of illegal acts.The criminal behaviors regulated by criminal law are not abstract but typical behaviors that can be stereotyped in reality.These behaviors can not be effectively covered by the types of criminal behaviors that have been stipulated in criminal law,but also need to have specific practical harm before they are necessary to be regulated by criminal law.The illegal use of personal information is defined as a typical illegal act in the pre law.With regard to the specific setting of the crime of illegal use of personal information,this paper holds that the crime of illegal use of personal information can be included in the crime of infringing upon personal information of citizens,without the need to establish a new crime alone.The whole newly revised crime of infringing upon personal information of citizens should be transferred to the crime of hindering the order of social management in chapter six.Finally,this chapter also discusses the elements of the circumstances of the crime of infringing personal information.Affirming that the elements of "serious circumstances" have a diversified position in the system of crime constitution.The theory of criminal law should seek to update within the scope of principles to adapt to the actual judicial situation and play a substantial guiding role.In terms of the system status of the crime amount elements such as "serious circumstances",in addition to the basic standard of "serious circumstances",other types of "serious circumstances" break the traditional theoretical boundary,but generally exist objectively.The criminal law theory needs to position its types and limit the expansion of types according to certain theoretical standards.Therefore,the author favors the basic opinion of the theory of the same kind of constitutive elements complex and the theory of punishable illegality.The special crimes of infringing personal information in our criminal law are all circumstance crimes.The crime of stealing,buying or illegally providing credit card information stipulates the conviction and sentencing standards of "one of the following circumstances" and "a large number or other serious circumstances".The crime of infringing upon citizens’ personal information has also set up such elements as "serious circumstances" and "especially serious circumstances"."Serious circumstances" itself is abstract,and the standard in judicial practice is very vague,which needs the guidance and application of judicial interpretation.The Notice of the Supreme People’s Court,the Supreme People’s Procuratorate and the Ministry of Public Security on Legally Punishing Criminal Activities Infringing upon the Personal Information of Citizens issued in 2013 and the Judicial Interpretation of Personal Information issued in 2017 have made corresponding provisions on "serious circumstances".From the perspective of two judicial interpretations,it is reasonable and operable to interpret the elements of "serious circumstances" of personal information,including the types,quantity,illegal income,social consequences,records of similar illegal and criminal acts,and losses of victims.In this paper,the circumstances of information type and information quantity,the third party’s involvement,the amount of illegal income,the special subject’s identity,and the circumstances of having been subject to criminal punishment or administrative punishment within two years are analyzed in detail.Fourth,the risk of personal information security is regulated by criminal law.This chapter mainly analyzes the path and system of personal information security risk prevention and control from the perspective of risk management.First,the prevention and control of personal information security risk should pay attention to the value balance between freedom and security.At the same time,this paper affirms the positive significance of risk criminal law theory and advocates strict restrictions on its application.In particular,the rapid progress and change of information technology has made great changes in criminal behavior,subject of crime and the impact of crime on society,which has increased the sense of social insecurity in the world.Society’s demand for order and security is increasing.In this context,"modern risk" has become an important role that can not be ignored in modern society because it creates new criminal activities.Preventive criminal legislation and justice are both reasonable responses to the new social risks which have also been affirmed by domestic and even international criminal policies.Therefore,instead of disputing the truth and falsity of the theory of risk criminal law,we should shift our attention and academic discussion to the reasonable limits and boundaries of preventive criminal legislation.Compared with the traditional criminal law,the preventive criminal legislation advocated by risk criminal law pays more attention to the protection of social order and safety.It will sacrifice the protection of law to human rights and freedom.Therefore,if preventive criminal legislation is not controlled,it may fall into another extreme.It should be restricted from both internal and external aspects of criminal law.Within the criminal law,we should actively use the principle of modesty.On the one hand,we should accurately understand the definition of the standard of criminal modesty in the current society to test the preventive criminal legislation.On the other hand,the principle of modesty needs to be applied to preventive criminal legislation through rigorous procedures.At the same time,the principle of legal interest is also a powerful tool to restrict preventive criminal legislation,which should be considered from two aspects of "quality" and "quantity".We should not adopt preventive criminal legislation to protect individual legal interest,that is,the theory of risk criminal law should not be applied to the protection of individual legal interest.However,the legal interests related to social order and security are different.The preventive criminal legislation should be limited to the protection of the legal interests related to social order and security.This is the limiting function of the principle of legal interest from the perspective of "quality".According to the provisions of the criminal law,the crime of our country is limited to the serious infringement of legal interest or the infringement of major legal interest.As the expansion form of the traditional criminal law,the prevention criminal law aims at the dangerous behavior that leads to the infringement of legal interest.Compared with the behavior that has caused the actual result,the illegal degree of the dangerous behavior is lower.Therefore,the degree of "danger" should be required,that is,only "major" danger is worth the means of preventive criminal legislation.This is the limiting function of the principle of legal interest from the perspective of "quantity".Second,the criminal integration of personal information security risk control.In the era of statutory offense,subsidiary criminal law can play a huge role.The accessory criminal law of our country only exists in the form sense,which does not play its due role,but also increases the complexity of legislation.Therefore,only substantive subsidiary criminal law can really play a role.The substantive subsidiary criminal law is mainly composed of two legislative modes: one is the scattered legislative mode,which refers to the legislative mode in which the relevant crimes and penalty clauses are directly stipulated in the financial and economic laws and regulations,food and drug laws and regulations and other administrative laws and regulations.The second is the codification type legislation mode,which refers to the classification and codification of relevant crime and penalty clauses in non-criminal law.It is worth noting that the codification type legislation mode will have a great impact on the current unified criminal law system in China and may cause the unlimited expansion trend of criminal law.Therefore,the scattered legislative model is more suitable for the current criminal legislative environment in China.The above legislative model is based on the premise that the criminal code has relevant provisions.But when legislators consider setting up new criminal law provisions and adopting the form of statutory offence,can they directly stipulate the crime description and statutory penalty in the subsidiary criminal law norms? The author thinks that this kind of legislation mode is desirable but should be strictly restricted.In addition,the relationship between crime and penalty can be analyzed from micro and macro perspectives.In the micro aspect,we should start from the specific charges,according to the principle of suiting the crime and punishment,heavy punishment for serious crimes and light punishment for minor crimes.On the macro level,it is the relationship between the severity of the overall penalty and the scope of the crime circle.In terms of the protection of personal information,the crime of infringing upon the personal information of citizens should be set up with various penalties and balanced and coordinated with other related charges in judicial sentencing.Third,the system of criminal regulation and control of personal information security risk.Based on the important position of information in modern society,as well as the huge negative effect of information risk on all levels,information risk management is imminent.Essentially,information risk management is to ensure the security of information from the aspects of information system,technology,rules,systems,etc.As an effective means of social management,legal system is bound to respond to information security risks.Criminal law is no exception.Through the above analysis,in modern society,information data carries the personal legal interests of personality right and property right,as well as the public legal interests.Information has become an independent type of legal interest with multi-level structure.According to the different types of information,the rights and interests it represents are different.So we need to establish and construct a multi-level criminal legal system.Based on the special status of criminal law in the whole legal system,criminal law needs to be cautious in legislation and judicature according to the different types of legal interests rep... |
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