The Theory Of The Crime Of Infringing Upon Citizens' Personal Information On "Citizens' Personal Information"

With the rapid development of network technology,great changes have taken place in people's lifestyle.In particular,the way people share and accept information has changed greatly.The means and ways of information sharing are also diversified and convenient.For example,online shopping,online job-hunting,online payment and live video broadcasting.However,while people enjoy the convenience brought by information,the risk of citizens' people information disclosure also increases.In recent years,crimes caused by the disclosure of personal information have also increased day by day,increasing year by year.In recent year,China has also accelerated the pace of criminal legislation protection of citizen's personal information in.China has promulgated and implemented the Criminal Law Amendment(VII)of the People's Republic of China since February 2009(hereinafter referred to as the Criminal Law Amendment(VII)),the Criminal Law Amendment(IX)of the People's Republic of China in 2015(hereinafter referred to as the Criminal Law Amendment(IX)),the Cyberspace Security Law of the People's Republic of China passed on November7,2016.In 2017,the Supreme People's Court and the Supreme People's Procuratorate issued a supporting judicial interpretation of the crime of infringing on citizens' personal information,namely,the Interpretation on Several Issues Concerning the Applicable Law for Handling Criminal Cases of Infringement of Citizen's Personal Information(hereinafter referred to as the Interpretation)and relevant laws and normative documents such as the “Information Security Technology Personal Information Security Specification(GB/T 35273-2017)” which came into effect on October 1,2020,and all provide relevant provisions for the protection of personal information.However,the definitions of personal information in the above-mentioned legal documents are different and lack of unity and standardization.Therefore,it is necessary to study the basic theory of the crime of infringing on citizens' personal information,specifically analyze the identification principles and standards of “citizens' personal information”,and explore the scope of criminal law protection of “citizens' personal information”.Regarding the criminal law protection benefit of this crime,the author thinks that it should include multiple legal benefits such as personal information itself and personal rights,property rights,privacy rights and so on involved behind the information.As forthe definition of “citizens' personal information”,there are currently differences in the theoretical circle on identification theory,privacy theory and relevance theory.The mainstream view is identification theory.In addition,personal information should also have the characteristics of legal protection value,objective authenticity and timeliness.When identifying citizens' personal information,certain principles and standards should be followed.The author believes that the principle of equal application of criminal law,the principle of balance between information protection and information circulation,and the principle of coordination between personal interests and public interests should be followed.On the standard of identification,we should not only adhere to the general standard of “identifiability”of identity,but also combine with the “relevance”subsidiary standard other than identity.Regarding the scope of criminal law protection of “citizens' personal information”,by determining the scope of “citizens' personal information”,we can basically clarify:personal information and personal privacy are partially cross-related,in which private information and private activities belong to personal information and private space does not belong to personal information.Personal information and personal data are the relationship between content and form.Personal “sex”information,mental health information and citizen biometric information belong to citizens' personal information,and the information after technical processing should be specifically analyzed.Subjective and representational personal information should be excluded from the protection of criminal law.