Judicial Cognizance Of The Crime Of Infringing Personal Information Of Citizens

With the continuous development of the information age,the value of personal information has become increasingly prominent.Driven by the huge interests,many criminals have taken risks and sounded an information security alarm to the public.The leakage of massive information not only puts personal and property safety at risk,but also has a huge negative impact on the development of information society,which needs to be restricted.At present,China's personal information protection law has been listed as the legislative plan of the Standing Committee of the National People's Congress,but the introduction of the law still needs time.In judicial practice,the legal protection of personal information security is mainly based on the provisions of criminal law and the corresponding judicial interpretation.Through the analysis of the relevant cases of the crime of infringing upon the personal information of citizens,it is found that there are still disputes on the definition of the personal information of citizens and the application of the "serious circumstances" determination standard in the judicial determination of the crime of infringing upon the personal information of citizens,that is,the focus of the dispute is whether a certain information belongs to the personal information of citizens,what kind of personal information it belongs to,and whether the amount of illegal income should be How to calculate the deduction cost and the amount of personal information of citizens.Therefore,this paper willfocus on the definition of the above-mentioned personal information of citizens and the standard of "serious circumstances",in order to benefit the judicial determination of the crime of infringing personal information of citizens.At the beginning of the article,the author makes a statistical analysis of the relevant cases in China and Shanghai from the macro and micro aspects,and finds that at present,the cases of the crime of infringing upon the personal information of citizens in China show the macro characteristics of the increase in the number of cases,the obvious regionalization,and the micro characteristics of the large number,variety,diversity and concentration of defense views.This leads to the difficulties in judicial identification,that is,the definition of personal information of citizens and the identification of "serious circumstances" based on the quantity of information and the amount of illegal income.In order to solve the problem of defining the personal information of citizens,the author intends to explore from the three dimensions of concept,scope and special personal information of citizens,and clarify the relevant standards.In theory,the personal information of citizens refers to the identifiable information.Some of the personal information of citizens protected by the criminal law of our country also has the characteristics of privacy and property.In terms of scope,the subject of citizen's personal information includes foreigners and stateless people,but not the dead.Indirect identifiable personal information,track and property information all have their specific scope.In the dimension of defining the personal information of special citizens,this paper argues that whether the public personal information of citizens can be protected by criminal law needs to be discussed according to different situations,that is,the personal information of citizens voluntarily disclosed by the obligee does not belong to the personal information of citizens protected by criminal law,while the personal information of citizens involuntarily opened by the obligee should be included in the protection scope of criminal law.In addition,enterprises do not belong to the category of "citizens",but the private information can be protected by the crime of infringing the personal information of citizens.In terms of understanding and grasping the specific standard of "serious circumstances".The interpretation of the two high schools has set the standards of information type,information quantity,information purpose,subjective intention,amount of illegal income,subject identity,criminal record elements and so on for the determination of "serious circumstances",which is more comprehensive and scientific than other provisions,but there are also some problems in the diversity of standards,such as setting the amount of illegal income as a single crime standard has a violation of punishment There is a suspicion of interpretation of the purpose of the law,and the standard has the natural defect of the failure of the identification of the size of the infringement of legal interests;the sentencing factor of the criminal record as the conviction standard confuses the boundary between the criminal offense and the sentencing responsibility,and puts the crime in the awkward position of the risk prevention law.In this regard,the author believes that we should adopt the mode of "the amount of illegal income + the circumstances" and the way of putting the criminal record back to the elements of sentencing to make up for the defects.In addition,this paper holds that the determination of the amount of illegal income should deduct costs,master the calculation rules of non repeated calculation,cumulative calculation and equal contract calculation,and make clear the choice of information authenticity in quantity calculation so as to calmly deal with the calculation problem of information quantity.