A Study On Crimes Of Infringing The Right To Privacy

Protection of the right to privacy is a hot topic in Chinese civil law research, yet it is still neglected in criminal law. And the criminal law provides scarce and unsystematic protection of the right to privacy as a result of our insufficient attention paid to the problem. It is a reasonable choice to protect adequately the right to privacy in criminal law system in a long-term perspective by considering our secular life experiences and cases of infringing this right in reality. This thesis is written from different perspectives, such as natural law perspective, social law perspective, prescriptive law perspective, and many research methods are adopted, such as comparative method, positive method, semantic method, and logical analysis method. It is intended to establish a systematic protection of the right to privacy in Chinese criminal law beginning with an analysis of the concepts of privacy and the right to privacy. It offers a tentative solution to implementation of protecting this right in the legislative level. The thesis is divided into three parts:Part I On Privacy and the Right to PrivacyIn China, it is a gradual process of understanding and recognizing the concept of privacy. Drawing lessons from the relevant researches in civil law field, we summarize the specific contents of privacy. On this basis, we make a full analysis of the two representative viewpoints of privacy in domestic studies, one being the dualist viewpoint held by Zhang Xinbao, another being triplicity viewpoint proposed by Professor Wang Liming and Professor Yang Lixin. After much deliberation, we hold that privacy refers to the state of being undisturbed and the freedom from unauthorized probe, gather or disposure of one's personal information that do not concern public interests. What's more, we propose that the contents of privacy be divided into two types: tangible and intangible. This provides a logical basis for the following discussions such as the "dual-space hypothesis" and the separation between the subject and the object in crimes infringing the right to privacy. Based on this understanding of privacy, we attempt to analyze the nature of the right to privacy. Law safeguards people's undisturbed private life in order to meet their need for inner seclusion. This conforms to the basic view that the right to privacy belongs to mental personality rights. The right to privacy is defined as the personality right that allows the state of being undisturbed and the freedom from unauthorized probe, gather or disposure of one's personal information that do not concern public interests. After this analysis of the right to privacy, we see clearly that there are two components of this right: the mental space and the physical space. Thus a structural viewpoint is formed and we call it "dual-space hypothesis". This thinking pattern may open a new perspective in criminal law researches concerning crimes of infringing the right to privacy.Examining the present Chinese legislation, certainly including the criminal law, we find that there do exist provisions to protect the right to privacy, but a comprehensive system of protecting this right has yet to be established. We think that this is because the right to privacy still does not hold an independent position in legislation. Part II Necessity of Stipulating Crimes of Infringing the Right to Privacy in ChinaWe prove the necessity and urgency of establishing the system of crimes of infringing the right to privacy from three aspects. Firstly, the world legislative trend demands further emphasis on protecting human rights, one of which being the right to privacy. To stipulate crimes of infringing the right to privacy is just what the trend requires. We put emphasis on protection of the right to privacy, especially under criminal law. It is our first choice to construct a systematic protection of the right to privacy at the present time. Secondly, it is a timely response to social life to stipulate crimes of infringing the right to privacy because currently more and more cases...