| Due to the increasing awareness of the public of their right to privacy and also the problem that personal information is routinely collected and sold on a large scale, the PRC Criminal Law was amended in a variety of areas, including defining certain acts relating to data collection and privacy as criminal offenses. China does not currently have a comprehensive legal framework to regulate the use and disclosure of personal data or a national level law that delineates how a company can legally collect, process and retain personal data. However, there are important rules scattered in diverse laws, regulations and local ordinances that should be considered. On Oct. 2014, the newly amendment to the criminal law did a modification. The paper did a research on the personal digital information protection that organizations and individuals are banned from collecting the personal digital information without authorization, and prohibited from selling or illegally providing the information to others, based on cases analysis.The paper is separated into four parts.In the first part, author defined the scope of the personal information. In the background of technology improvement, personal information has turned into dynamic and has appeared to be infringed in judicial practice. Therefore, dynamic information should be categorized into citizens’ personal information. This article has constructed under the new era background dynamic information frame. From analyzing the characteristics of dynamic information in the sense of the criminal law, author considered that the scope of citizens’ personal information should be extended static to dynamic.In the second part, author analyzed the subjects of organizations and individuals obtaining personal digital information via legal means, and selling or illegally providing the information to others. In the traditional view on the subject of the crime, it belongs to the special subject. However, author tried to view it from the hermeneutic and the criminal law principle of legality, analyzed the lack of reasonability of the previous view and put forward the legislative intent of the crime under the guidance. At the same time, author combined with the background of the new era for the diversity of selling digital information, focusing on services such as web services that do not belong to the public power, which will provide the collection of users’ information in the service of the illegal behavior. As information may cause serious damage, and the scope of the subject of the crime should be appropriate to expand.In the third part, author discussed the regulation of selling or illegally providing the information to others. The subject of the crime shall be changed as the rapid development of network information, and the judicial practice gradually appeared in the behavior of the collection of network user behavior information through the network of open channel, this behavior does not belong to the collection of the right description gathering behavior permissions. Therefore, it is necessary to discuss the nature of the network and collect the definition. Through the comparison of the network to collect and simple web search, author discussed that the network collection shall not be searched on Internet without authorization. Through a brief introduction to collect without authorization behavior mainly includes two types: one is information gathering behavior beyond the authorized scope, the other is obeying permissions information gathering behavior. As its serious effect, author gave the suggestion on establishing regulation for the behavior above.In the fourth part, author discussed the “gravity of the circumstances†of specific criteria. Begin with related crime cases, author made comparisons on illegal profits and the final sentencing results of crime. Next, the author pointed out that the setting of criminal law reflects the contradiction in criminal law. In addition, for the victim’s loss as evaluation standard, the author considered that it should be discussed in different conditions, in view of the fact that there may be a time interval, between the infringing act and material loss. Therefore, if it constitutes a crime and the material loss has occurred, it should be considered as the evaluation standard of incrimination, but if it is impossible to count material loss, it shall be judged combining with other circumstances. Finally, if there is other crime based on the behavior of selling and illegally providing personal information, it should be regarded as gravity of the circumstances. |
