Research On Judicial Cognizance Problems About Infringement Of Personal Information Of Citizens Crime

At present,the crime of infringing on the personal information of citizens shows a trend of high incidence year by year,and the connection with downstream criminals such as network fraud and extortion has become increasingly close.However,due to the lagging nature of the relevant legislation and judicial interpretation and the diversity and complexities of criminal means,it is not uncommon for judicial practice to "not sentence" or "dare not judge" such crimes.To this end,both parties jointly issued the "Interpretation on Several Issues Concerning the Application of Law in Criminal Cases of Violating the Personal Information of Citizens"(hereinafter referred to as "Interpretation")jointly issued on May 8,2017,"Interpretation" enriched the connotation of citizen's personal information,clarified clearly and clearly the standard of conviction and sentencing of personal information crime,and to a certain extent,quelled the controversy and difficult problems that arose after the establishment and amendment of the crime,Accuracy and unity of judicial practice.However,from the content of "explanation",there is still room for further interpretation of the corresponding standards of conviction and sentencing.There are still some controversial issues concerning the application of law.Based on the new provisions of "Interpretation",this article will sort out the elements of the crime of infringing on the personal information of citizens and make further analysis and discussion on the difficult problems in the application of justice so as to be helpful forthe effective protection of personal information of citizens.Provide reference and reference for relevant judicial practice.In addition to the introduction of this article,divided into the following three chapters:The first chapter clarifies the meaning of "violation of the relevant provisions of the state".The expression "in violation of the relevant provisions of the State" in the "Amendment to the Criminal Law(IX)" is intended by lawmakers and has the connotation and denotation different from the "violation of the state provisions" in Article 96 of the Criminal Law.The "violation of the relevant provisions of the state" is an objective element of constitutional elements.Based on the characteristics of the secondary illegality committed by the law,judiciary practice should clearly indicate which of the provisions of the preceding law was violated by the perpetrator in the judicial part of the judgment.Although Article 2 of the Interpretation incorporates departmental rules into the scope of relevant state provisions,it is a helpless move to deal with the lack of frontier legal laws in line with the logic of purposeful interpretation.However,it conflicts with the principle of unification of the socialist legal system and fails to pass the constitutionality Review.Under the premise of "interpretation" coming into effect,the "relevant provisions of the State" should be narrowly interpreted,and the departmental rules can only be used as a judgment of whether the acts are illegal if the contents prescribed by the laws and administrative regulations of the higher-level government are clearly and precisely defined National guidelines for the relevant provisions.The second chapter defines the connotation and denotation of "citizen's personal information".In order to combat the complex and ever-changing information crime in risky society,the meaning of citizen's personal information is expanded to include static identification information and dynamic activity information.Correctly understand and identify the personal information of citizens must be based on the actual illegality,firmly grasp the dual interests of the citizens 'safety of life and public information security protected by this crime,and firmly grasp the core element of "identifiability" of citizens' personal information.The main body of citizen's personalinformation should include Chinese citizens,foreign citizens and other stateless persons,excluding legal persons and other organizations.Identification of whereabouts trail information should be grasped from both the dynamic and relative independence of the content.The static location information of personnel and the travel information specified in the transportation ticket do not fall into the category of track information of the whereabouts.In addition,the property information should be used as a restrictive explanation,focusing on reflecting the nature of the property,reflecting the static characteristics of the property,involving property transactions,that is,the dynamic characteristics of the property should be identified as transaction information.The third chapter summarizes and analyzes the objective behavior of the crime of encroaching upon the personal information of citizens.The objective behavior of this crime can be briefly summarized as leaked and acquired two types.Leakage is the sale and provision of citizen's personal information to others.Selling is a common occurrence and is therefore listed separately to emphasize that the difference between the two is whether or not the perpetrator is paid.The act of affirming "providing" can not be based on the principle of whether or not the obligees agree,but should be based on the "relevant state regulations".Knowingly or should be aware of others to commit a crime to sell or provide personal information of citizens,according to the degree of understanding of the crime to be assisted by the different,the final identification of charges are also different.In addition,the term "crime" here should not include the crime,that is,the provision that does not apply to the crime when it is known or should have known that another person has continued to commit personal information using the personal information of citizens provided by him.The so-called acquisition refers to the theft or other illegal access to personal information of citizens,"illegal" should be understood as violation of the relevant provisions of the State,as long as the act in violation of relevant provisions of the State and stolen behavior is comparable to the "other methods".That is,neutral means may also constitute the crime.In view of the provisions of Article 6 of the Interpretation for the legal operation and the illegal purchase and acceptance behavior,the essence of legal operation should beaccurately grasped from the substantive level,that is,whether the business itself used for obtaining information by enterprises is legal or not,Illegal situations are excluded.The meaning of "profit" can be grasped with reference to the connotation of "the amount of illegal gains" in the crime of intellectual property rights.For the illegal use of citizens' personal information,they can use the peripheral regulation theory to include them in criminal circles through the interpretation of the terms in the law without having to separately criminalize such behavior types.