| In recent years,the leakage of citizens’ personal information and the resulting accurate fraud and other related downstream criminal activities intensified,personal information security has never been as important as today,personal information protection related laws emerged,the crime of violating citizens’ personal information is a strong embodiment of personal information protection in the field of criminal law.However,China’s personal information legislation has lagged behind for a long time in the past,and the systematic personal information protection Law will not be formally implemented until 2021.The phenomenon of punishing the ancients after the ancients has existed for a long time,and the identification of the crime of violating citizens’ personal information is still controversial in theory and practice.Through a large number of literature reading and analysis of typical cases,under the background of the enactment and effectiveness of the Personal Information Protection Law,this paper re-examines and analyzes the connotation of the criminal object of the crime of violating citizens’ personal information,the identification of the object of behavior and the influence of the consent of the information subject on the identification of this crime.The crime of infringing personal information protects personal legal interests.Personal information has strong personal attributes and can correspond with specific individuals one by one.Individuals can only use their own personal information,which does not have the characteristics of indivisible supersensitive legal interests.Therefore,this crime does not protect supersensitive legal interests such as public information security.The object of this crime is personal information security,that is,personal information contains the personal and property safety attached,to regulate risks,curb the downstream crime of personal information leakage,to prevent personal information from being illegally used to infringe on the personal and property safety of the information subject.In the identification of citizens’ personal information,the "identity" in the identification information should be understood in a broad sense.It is not required to be associated with the identity identified by the state authority,as long as the natural person can be identified from the social group.The key to the information reflecting the activity is the specificity of the information subject.In the judgment of "identification",the identification,that is,indirect identification,should be combined with the ability of the identification subject and the size of the identification cost to flexibly judge whether it belongs to the "citizen’s personal information" in this crime.According to the Relevant provisions of the Personal Information Protection Law and the Civil Code,public information is not liable for civil and administrative responsibilities when it is reasonably used,so it should not bear criminal liability.However,it should be determined prudently.In terms of the openness of information,the legally public information is not the personal information protected by this crime.The publicity of information disclosed by oneself should be judged reasonably based on the channels and scope of publicity.In the processing of information,it shall be required to be used reasonably and not beyond the scope of the purpose and use of the disclosed information.In terms of the victim’s consent and the determination of this crime,the consent of the information subject has two meanings.First,the Personal Information Protection Law and civil Code establish the principle of informed consent,and the consent of the information subject becomes the main criterion for judging whether the relevant provisions of the state are violated,which can prevent the establishment of this crime in the aspect of constituent elements.The second is that the crime protects personal legal interests,as a violation of laws and regulations,the victim’s consent can prevent the establishment of the crime.However,the validity of the consent of the victim needs to meet certain conditions to ensure that the information subject has full freedom of choice to ensure the authenticity of the consent;The obligation of information processor to inform the risk caused by the consent behavior of information subject is the precondition of effective consent so as to ensure that the information subject has full understanding and insight of the risk of consent.We also need to ensure that we have the right to dispose of the infringed legal interests,and cannot violate the provisions of the law,endanger the national public interests,public order and good customs. |
