On The Revision Of The Judicial Interpretation Of The Crime Of Infringing Upon Citizens’ Personal Information

After the implementation of the Personal Information Protection Law,the basic legal order of personal information protection has been established,and it is necessary to review the crime of infringement of citizens’ personal information from the perspective of administrative-criminal penalty connection.On the one hand,criminal law does not create a new order,but confirms the existing order.As supplementary law and final safeguard law,the connotation of criminal law needs supplement,guarantee and restriction of civil law and administrative law.On the other hand,we should follow the principle of unity of legal order,promote the convergence and coordination of criminal law and administrative law,and build a multi-level legal protection system for personal information.It can be found that there are mainly three divergences between the judicial interpretation and the Personal Information Protection Law after comparing the judicial interpretation of the crime of violating personal information with the provisions of the Personal Information Protection Law and examining the representative cases in practice.First,the scope of personal information of citizens tend to be unduly expanded.Many judgments are based on the grounds that the information involved can reflect the individual’s property,activities and other characteristics,bypassing the positive demonstration of whether the information is identifiable,indicating that the connotation and limitation of the identification standard need to be fully discussed.The legal interests of personal information are also worth exploring.The current mainstream view of the right to self-determination of personal information ignores the public attributes of personal information.Second,the extended“violation of relevant state regulations” includes departmental regulations,which is largely due to the absence of prior norms at the introduction of judicial interpretation.However,under the premise that the prior law is basically complete,departmental regulations continue to be included in the scope of general illegal judgment basis,which appears deviated from the principle of legality,and does not meet the practical necessity of balancing the protection and utilization of personal information.Third,the types and quantity standards of information in the “serious circumstances” set crime thresholds of fifty,five hundred and five thousand pieces of information respectively according to the importance of the information,but the overlap between the overly fragmented categories has led to different determinations of the same type of information in practice.At the same time,there are also problems such as missing elements in individual types.In this regard,the judicial interpretation of this crime should be amended from the following perspectives.First of all,the expression “or various information reflecting the activities of natural persons” in Article 1 should be deleted,and the standard of identifying personal information of citizens should be clarified again to reasonably define the scope of protection of this crime.At the same time,in order to better play the role of legal benefit in guiding the interpretation of the elements,it should be clear that the legal benefit of this crime is super personal.Besides,it is necessary to establish the logic of judging the identification first,and then judging the legal benefit infringement.Secondly,the departmental regulations in Article 2 should be deleted to maintain the consistency with Article 96 of the Criminal Law,and the blank norms of the crime should be given full play to the dual function as elements of the constitutive requirements and hints of illegal deterrence in the application.Besides,in accordance with the provisions of the Personal Information Protection Law,the types and quantity standards of information in Article 5 should be reconstructed,indicating that we should set thresholds of fifty and five thousand pieces for sensitive personal information and general personal information respectively,which is in line with the differentiated protection attitudes of the predecessor law.