A Study Of Criminal Law Protection Of Personal Information

Personal information is the combination of individual characters, information or data, which is specific to the individuals to make their own probability, degree of ambiguity and uncertainty deduce; and through certain media or other ways for other people to perceive or exchange; to distinguish one from the outside world or other people; to sign the individual characteristics. With the ever-changing electronic technology and the rapid development of information science, a large number of personal information collection and usage has become an important part of people'lives and has made people's lives fast and convenient in the information society as well as bring real threat and potential danger to the former peace life. Frequent disclosure of personal information, exposure of life privacy, common use of human flesh search and malicious use of personal information cause people to tremble with fear; from time to time worry that they will be"transparent","exposed"in the world; past peace, good order has become a time of the good memories and dreams of paradise luxury. It made that kind of life difficult to achieve for us, caused the deteriorating quality of individual lives to some extent and even endangered the reputation of individuals, property, personal life safety as well as affected the normal operation of the information society and a healthy development to become a major social security risks. Thus, the construction of legal protection of personal information has become a major contemporary social issue.From the legislative level, various types of acts with different level of violation of personal information should be adjusted and regulated by the civil law, administrative law and criminal law respectively and cooperatively. Thus, for the protection of personal information, the relevant administrative law, civil law and even the criminal law has become necessary; in particular, as a backup method to protect other laws, criminal law can not be ignored. However, careful study of China'current criminal code, it is difficult to find any provisions and charges with an object of protection of personal information. Even in the articles, which are designed to protect personal information, in the Amendment VII to the Criminal Code, passed by the seventh meeting of the 11th national congress's standing committee, there are also many failings. Based on this, this paper the starting from points of personal information, basic theories on the right of personal information and the needs for the criminal law protection of personal information, specifically addressed the bases for the protection of personal information under criminal law and legislation on criminal law protection of personal information. As to the current status of defect on the protection of personal information in China, referring to the advanced model of foreign criminal law to protect personal information, from the structure of"strict but not practical"of the criminal code and the criminal law dimension of the"rule of utility"view, this paper has done some bottom suggestions for the protection of personal information, to benefit our countries'criminal law protection of personal information which is at the starting point.Besides the introduction and epilogue, this paper is divided into four parts:The first part is an overview of criminal law protection of personal information. Among this part, by comparison and analysis of four theories related to the concept of personal information, privacy as well as personal data, the author defined the concept of personal information and its coverage , on this basis elaborated the legal character and classification of personal information ,specify the author's academic position that personal information are"personal rights"and further from the reality of abuse, the limitations of sanctions and socialist legal system described the necessity of criminal law protection of personal information.The second part illustrates the bases for the criminal law protection of personal information. This part, reviewing the human basis of crime–the needs, criminal nature, nature of penalties, function of criminal law, cases of infringement and people-oriented harmonious thought, was designed to explore the convicted on criminal law protection of personal information, that is, its philosophical basis, legal basis, sociology basis and practice basis. From the prospective of criminal law theory it analyzed the rationality and essentiality of the criminal conviction on protection of personal information.The third part is about the modest analysis on the criminal law protection of personal information. This part, reviewing the criminal law protection of personal information with respect to the legislation of conviction, judicial interpretation, discretion and the application of penalty, dynamic process of judicial mechanisms and limit for conviction of"search personal information", was designed to explore the unconvicted standards on it ; with a view to protect the society as well as the human right, which is the ever pursuing goal of our legislation.The fourth part is about the current legislative status at home and abroad on protection of personal information and some analysis on it. This section first analyzed the protection of personal information in criminal legislation in China, then introduced the legislative models of European countries, America as well as Japan who are the leaders in the field of protection of personal information, among them focusing on the so-called show of the world on protection of personal information—the American legislative model which is known for its case law system and the German legislative model that is known for its statutes. In contrast, we want to find something suitable for our country's protection of personal information, with a view to gain a good result by referring to outsider factors.The fifth part is concerned mainly about the flaws and defects in our country's legislation on protection of personal information and its improvement. This section explained the flaws and defects in China's current criminal law on protection of personal information from the perspectives of absence of related crime, the scope of protection, the penalties way of prosecution, the scope of the subject of crime as well as the default of the"personal information protection law". And on this basis, from the structure of"strict but not practical"of the criminal code and the criminal law dimension of the"rule of utility"view, this paper has done some humble suggestions for improvement of the criminal law protection of personal information, with a view to realize the legislative intent of conflict resolution.