Study On The Judicial Application Knotty Problems Of Crime Of Infringing On Citizens' Personal Information

In order to deal with the increasingly serious situation of personal information crime,Criminal Amendment IX revised the crime of infringing upon personal information of citizens,improved the regulation of criminal law on the increasingly serious crime of personal information,and then the "two highs" issued judicial interpretation to further guide the judicial application of this crime,but some difficult problems of judicial application have not been solved."Personal information of citizens" protects personal information of Chinese and foreign citizens and stateless persons.The definition should emphasize that the most fundamental nature of personal information of citizens is identifiability,but the connotation concept is still limited,which fails to meet the trend of gradual enrichment of personal information types and forms of expression of citizens.The legal interest of citizen's personal information should be the right of personal information in personal legal interest,that is,the right of the subject of personal information to control,control and exclude others' infringement on his personal information according to law.The theory of legal interest of personal information right not only conforms to the basic rules of determining legal interest,but also helps to realize the unification of personal information protection within the legal order,and provides direction for solving difficult problems in judicial application.There are some problems in the judicial application of the crime of infringing upon citizens' personal information.In practice,various ways of conduct should be combined with the relevant cases to accurately apply laws and regulations,so as to avoid the situation of expanding or narrowing the scope of attack.Among them,"illegal provision" of personal information should include paid provision and free provision.Due to the different attributes of personal information and general goods,the identification of "theft" does not take confidentiality as an important element,while the identification of "other illegal acquisition" methods should pay attention to the judgment of the same risk,especially the special provisions of "for the subjective purpose of legal operation" should be applied according to The concrete analysis of specific cases focuses on the comprehensive identification of subjective purposes.In other difficult problems related to this crime,the illegal use of personal information of citizens also needs to be brought into the scope of criminal lawbecause of the seriousness of the consequences of infringement,so as to more comprehensively and accurately combat the crime of personal information.At the same time,crawler technology,which is widely used in cyberspace,may capture the personal information of citizens.By analyzing whether the use of technology belongs to goodwill,we can determine whether it constitutes a crime of infringing the personal information of citizens.The determination of the calculation rule of personal information quantity in "serious circumstances" is more complex and vague.A correct understanding of it is conducive to the definition of crime,non crime and misdemeanor in judicial practice.