Research On The Criminal Responsibility Of Internet Service Providers For Infringing Personal Information

In the era of big data,personal information gathered in all directions is sufficient to form a "data personality".The reason that criminal law regulates the flow of personal information is not only the need for the development of personal rights,but also an inevitable result of the development of human rights.In the personal information flow chain,Network Service Providers are in a vital link.Not only can they have close contact with personal information,but they also hold a large amount of such information.It is particularly important to determine its rights,obligations and responsibilities in criminal law.In the first part of this article,first defines the concept of personal information and Network Service Providers.It argues that there is no need to delineate personal information into a clear scope of criminal law protection.Instead,it should be confirmed in specific cases whether the personal information of the case should be included the scope of protection of criminal law.Network Service Providers should be made a type distinction based on their business,different types of Network Service Providers have different obligations.Under the definition of the above two concepts,this part next explores the serious violation of personal information in the current Internet era,and the current criminal legislation is not very operable in regulating Network Service Providers Internet infringes personal information.The inherent shortcomings,such as severe fragmentation,have also caused problems such as the confusion in the application of criminal justice.Therefore,it is necessary to carry out related criminal research.The second part mainly solves the problem of determining the legal properties of personal information.Whether legal interests have been infringed is the basis of criminal liability determination.Only by clarifying the legal interests of personal information,can we answer the question of how to determine the criminal liability of the crime of infringing on personal information by Network Service Providers.By comparing various theories of legal interest,the author believes that the nature of personal information legal interest is defined as the legal benefits of Information exclusive rights,which can reflect the individuality and publicity of personal information,and can effectively balance Freedom and Security of Personal Information.Which is,the degree of security is set in a dimension that promotes the maximum freedom of personal information.The third part is a typed analysis of the criminal behavior of Network Service Providers infringing on personal information.It is mainly divided into two types: as types and inaction types.The legal benefits of the exclusive right of information are used to interpret the relevant behavior types and the crimes involved.There are main types of acts: the individual crime model,the helper model,and the prepared crime model.The corresponding crimes are crimes against personal information,crimes of helping information network criminal activities,and crimes of illegally using information networks.In the type of innocent crime,the crime of refusing to perform the obligations of information network security management is more typical.The fourth part is mainly aimed at the problems of the current court in determining the criminal responsibility of the Network Service Provider for infringing upon personal information.This chapter analyzes the following two issues under the guidance of legal benefits of Information exclusive rights: The first is the confusion of upstream and downstream crimes.The second is the determination of the cessation of the crime against personal information.The author believes that in dealing with the competition between the crime against personal information and other crimes,the number of acts should be determined according to the number of legal interests,and then delineate which provisions of the criminal law sub-rules are involved in the behavior,and finally sort out the relationship between these criminal law provisions to determine how the crimes compete;The time points of the "start" and the accomplished crime should be determined according to the extent to which the legal benefits of information exclusive rights are infringed.When the degree of infringement of the legal benefits of Information exclusive rights appear to be urgent,it is determined to "start";when the legal benefits of Information exclusive rights are actually infringed,and not just in danger of being infringed,it is determined to have been completed.