Research On The Difficult Problems In The Objective Aspect Of The Crime Of Violating Citizens' Personal Information

2017 projects jointly issued the "about to infringe on their citizen's personal information crime criminal cases to explain some issues of applicable law(hereinafter referred to as the" explanation "),the explanation of some of the clauses in this crime made further supplement and instructions,make up for the deficiency of the legislation,established a clear standard for this crime judicial application.However,there is still some confusion in the specific identification process of this crime,which not only contains the hidden danger of the interpretation itself,but also has the "old disease" that the judicial interpretation has not yet touched.Based on the latest provisions of the interpretation,this paper insists on the idea of raising,analyzing and solving problems,and analyzes and discusses the problems existing in the objective identification of the crime of violating citizens' personal information,so as to provide references for the judicial application of this crime.In addition to the introduction,this paper is divided into the following four chapters:Chapter one analyzes the difficulties in the objective identification of the crime of violating citizens' personal information.The first part first introduced the infringement of citizens' personal information crime legislation present situation and the judicial present situation,from the perspective of the legislative status quo of this crime,altogether has experienced three development stages,respectively is "criminal law amendment(7)"(hereinafter referred to as the "punishment(7)"),"criminal law amendment(9)"(hereinafter referred to as the "punishment(9)"),the promulgation of the "explanation".Through the arrangement and analysis of judicial cases,it is found that the judicial status quo of this crime presents two characteristics: first,the overall number of cases is on the rise;Second,the number of cases is obviously regional.The severe situation in which citizens' personal information is infringed puts forward higher requirements for the clarity of judicial identification.The second part,based on the latest interpretation and combined with the analysis of relevant cases in practice,extracts some common problems from the interpretation and cases,and summarizes the three major dilemmas in the objective identification of this crime.The last three chapters of this paper respectively discuss these three problems.Chapter two identifies the targets of the crime of violating citizens' personal information.The first part clarifies the legal interest of the protection of "citizens' personal information",and the author thinks that the legal interest of the protection of this crime should be set as "personal information right".The second part makes a comparative study of the legal terms of "personal information",sorts out the controversial views on the definition standard of personal information of citizens,and puts forward that "identification theory" is the core element of identifying personal information of citizens.On this basis,it analyzes the connotation definition of the provisions of "interpretation".The third part is mainly about "citizens' personal information" to define the scope,the author thinks that to deal with the crime in expanding interpretation of "citizen",the unit and the cognizance of enterprise information not only from the form that should be grasped,essentially to open the verification of citizens' personal information,not only with "sure" or "no",should be combined with this crime objective behavior to distinguish between four different situations.The third chapter is the determination of the administrative illegality of the crime of violating citizens' personal information.The first part on the "violation of the relevant provisions of the state" of the attribute to carry out identification.First of all,the relationship between "violating the relevant regulations of the state" and "violating the regulations of the state" is analyzed,and on the basis of academic theoretical research,"violating the relevant regulations of the state" in this crime is proposed as the element of the constitutive elements of the crime.In the second part,from the perspective of practice and interpretation methods,the author analyzes that the inclusion of departmental rules in article 2 of the interpretation into "violation of relevant provisions of the state" lacks operability in judicial practice and violates the principle of legality of crimes,so the interpretation of "violation of relevant provisions of the state" should be limited.Chapter four identifies the behavior pattern of the crime of violating citizens' personal information.The first part is the identification of the leaking behavior,which includes selling and providing.The author thinks that selling is the typical way of providing,so it is listed separately.The key difference between the two is whether they get paid or not.The second part is the identification of acquisition-type behavior,which refers to stealing or obtaining by other illegal means.The author believes that "stealing" behavior should not take secret and transfer of possession as the essential elements,and "illegal" should be understood as "violating the relevant provisions of the state".For the "illegal purchase and purchase behavior in legal business activities",we should strictly identify the type of information and accurately grasp the concept of "legal business".