Research On The Object And Mode Of Violating Citizen's Personal Information

With the common development of economic society and information science and technology,big data has become an important strategic resource leading scientific and technological innovation in the information age.The circulation and transaction of data including personal information realize scale benefit and economic value,while in the process of data flow and transaction,the risk of personal information diffusion and out of control is easily generated.The illegal collection,use,embezzlement and disclosure of personal information of citizens emerge in an endless stream.In this context,the use of legislation to protect the personal information of citizens is particularly urgent.Although China has responded to relevant laws and regulations by including contents related to personal information protection,there is no complete and unified personal information protection law.Whether due to the defects of system technology,the pursuit of profits or the omission of supervision,the failure to crack down is an important reason for the surge of citizens' personal information crimes.The increasingly intensified personalinformation leakage event calls for the early intervention of criminal law.From the criminal law amendment(7)additional charges,criminal law amendment(9)of modification,to projects supporting judicial explanation,this process reflects the rapid development and great social harmfulness such crime.At present,China should combine the demands of judicial practice closely and gradually perfect the application system of legal protection of citizens' personal information crimes.Whether a citizen of Chinese nationality,or a stateless person,or a person of another nationality,the personal information of a citizen directly as the subject of the crime of violating citizen information meets the requirements of practice.In addition,based on the dual attributes of personal information and property of the deceased,as well as the convenience of operation in judicial practice,such personal information cannot be denied due to the death of human beings,and can be considered for protection.In view of the definition of "personal information",introduced in 2017,?the supreme people's court,the supreme people's procuratorate on handle criminal cases of infringement of citizens' personal information to explain some issues of applicable law? made clear that the conditions of individual citizens need to have information,but in practice how to cognizance of citizens' personal information is still not effectively solve the identification problem.The discussion of this issue should not only focus on the listing of basic elements in form,but also firmly grasp the essential characteristics of citizens' personal information,that is,individual or combined with other information,and can clarify the identity or activity of natural persons independently or through correlation or expansion.To be specific,this paper believes that the personal information of citizens can be divided into comprehensive information,sensitive information and simple information for identification.In practice,comprehensive information and sensitive information can be directly identified as personal information of citizens.Simple information needs to be identified from two aspects,substance and form.In addition,consideration should be given to the substantial requirement that the subject of personal information does not give up the relevant rights.Due to the large amount of information,the time limit ofcase handling is usually based on the presumption of logic and empirical laws.It is difficult to verify the authenticity and repeatability of mass citizens' personal information.Once the false evaluation is not excluded,it violates the legal principle of criminal punishment.In practice,this problem can be solved by sampling inspection,weight removal and identification,which does not mean that the burden of proof is directly transferred to the defendant.From the way of criminal behavior,the property obtained by selling personal information should not be limited to money and material goods,but should be expanded to property interests.The act that does not acquire property or property interests does not constitute a crime,and can be dealt with and regulated according to the model provided.The legal business activities are evaluated with reasonable judicial interpretation.The subjective and malignant nature of such actors is relatively small,and the criminal responsibility should be reduced.In practice,the use of legitimate business activities should be the overall grasp,and should pay attention to the operation of the company produced such as tax evasion,false advertising and other illegal ACTS.The difference between illegal collection and illegal acquisition lies in whether there is the collection authority,and illegal collection in the process of performing duties and providing services should not be considered as illegal collection.Theft is also controversial in practice.Personal information of citizens has both property and physical properties of intangible objects.From this point of view,it should not be confined to the theft of secrets,should be defined as the overt acquisition of peaceful means as appropriate.In practice,the target of theft should not be personal information,but also contain the carrier of personal information.Based on the value of both and the purpose of the subject of the crime,larceny and this crime should be selected.For the behavior mode of "illegal acquisition by other methods" in this crime,it is a pocket expression of the bottom of the pocket.For example,"purchase" method is also a relatively common type of illegal acquisition,but it is only limited to illegal purchase to avoid confusion with the judgment of complicity.The relationship between the crime of violating citizen's personal information and other related crimes has always been an unavoidable issue in judicial application,and the boundary between the crimes and the number of crimes should be further clarified.Specifically,this crime and stealing,buying or illegally providing credit card information crime tolerance and cross on the constitutive requirements,belongs to the competition law,the implementation of stealing,buying or illegally providing credit card information in the personal information by others shall be in accordance with the special law takes precedence over the general principle of law,by stealing,buying or illegally providing credit card information crime convicted and punished;If a state functionary sells or provides to another person state secrets which are the personal information of a citizen,it shall constitute a contest between this crime and the intentional disclosure of state secrets.This crime and the crime of illegal for computer information system data there is no law of inclusion,cross,belong to imagine co-opetition relationships,actor stole the behavior of the citizens' personal information network system,the infringement is the computer information system data security and dual legal interests,citizens' personal information as a result of both the maximum punishment prescribed is the same,shall,according to the specific case to analysis;Citizens in order to sell or provide personal information and unlawfully opens,conceals or destroys mail or telegrams,others two are independent as sin means and purpose of implicated relation,choose a felony to infringe on their citizen's personal information crime convicted and punished,but in practice there are also private letters to improvise after sale,provide information to others,based on different purposes of different behavior should be combined punishment for several crimes;To identify the number of crimes in which the perpetrator illegally obtained the personal information of citizens and used the information to commit fraud,specific analysis should be made on the basis of the principle of implicated offense,which separately constitutes the crime of fraud or combined punishment for several crimes.