The Dilemma And Solution Of The Crime Of Infringing Citizen’s Personal Information

With the rapid development of information technology,we are now in the era of big data.The massive and rapid flow of data brings convenience to social development,as well as frequent violations of personal information.This practical problem has caused citizens’ lack of trust in information security,and has posed a serious challenge to the existing legal system.In the era of big data,personal information security is not only related to the protection of individual rights,but also to the security and interests of the country and the society.How to respond to those risks in a timely manner has become an urgent problem to be solved.Due to the complex and diverse behaviors of the crime of infringing citizen’s personal information,there are many problems in the application of this crime in judicial practice.This paper aims to analyze the predicament and solution of this crime in the era of big data.In this way,the criminal law can function well in protecting citizens’ personal information.This article is divided into the following five parts:The first part of this article is an overview of the criminal law protection of citizens’ personal information.At present,China is in a period of rapid development of the digital economy,while the risk of personal information leakage has also been increasing.In the era of big data,the crime of infringing on citizens’ personal information has an upward tendency and may lead to serious consequences.Therefore,improving the criminal law protection system for citizens’ personal information is helpful to promote economic development,and is also of great significance to the maintenance of social and public interests and national security.As the core crime of criminal law protection of personal information-the crime of infringing citizens’ personal information,it has four main problems in practical application: the definition of personal information in the judicial interpretation of this crime is not clear;the provisions on the objective behavior of this crime are not comprehensive;the nature of this crime’s legal interests is not clear;the standard for "serious circumstances" is not reasonable.The second part of this paper focuses on how to clarify the definition of personal information in criminal law.From a theoretical point of view,the current academic definition of personal information mainly includes three viewpoints: "association theory","privacy theory" and "identification theory".This article supports the basic position of "identification theory",because it is more reasonable to regard identification as the core connotation of citizens’ personal information,which is more conducive to accurately crack down on criminal acts that infringe on citizens’ personal information,and is more in line with the status quo of judicial practice in China.From the perspective of judicial interpretation,the judicial interpretation of Chinese criminal law is not the same as the provisions on the definition of citizens’ personal information in the Personal Information Protection Law.According to the principle of legal hierarchy,the scope of protection of citizens’ personal information in criminal law can only be less than or equal to the preceding administrative regulations,and the definition of personal information in the judicial interpretation of the criminal law is more scientific and consistent with the Personal Information Protection Law.Specifically,the scope,characteristics,and identification of personal information in judicial interpretations of the criminal law should be adjusted with reference to the Personal Information Protection Law.In addition,the "de-identification" system of personal information should be improved in the judicial interpretation of the criminal law to give full play to the circulation value of personal information.The third part of this paper mainly discusses the legal interests infringed by the crime of violating citizens’ personal information.The confirmation of the legal interests of the crime of infringing on citizens’ personal information is related to the determination of whether the crime constitutes a crime or not.If the act of infringing on citizens’ personal information does not have the possibility of infringing legal interests,the act does not constitute the crime of infringing on citizens’ personal information.Combined with the positioning and provisions of the crime of infringing citizens’ personal information in the criminal law,and the overall framework of the criminal law for the protection of personal information,the legal interests infringed by this crime should be personal legal interests rather than super-personal legal interests.Specifically,identifying the protection of the legal interests of the crime of infringing citizens’ personal information as the right to self-determination of personal information is in line with the legislative intent of the crime,in line with the provisions of the crime,and will not lead to the emergence of criminal law and the "Personal Information Protection Law" and other prerequisite laws.conflict,and thus legitimate.The fourth part of this paper focuses on analyzing how to improve the provisions on criminal behavior in the crime of infringing citizens’ personal information.The criminal law only stipulates three behaviors of illegally obtaining,providing and selling personal information.In contrast,the provisions of the Personal Information Protection Law on violations of citizens’ personal information are more general,but not all administrative violations should be included in this crime.For example,only illegal storage of personal information does not.It should constitute the crime of violating citizens’ personal information.The act of illegally tampering with personal information and the act of legally obtaining but illegally using personal information have great social harm,and are not uncommon in judicial practice,so it is necessary to convict them.The criminal law should include the above two criminal acts in the scope of regulation.middle.The fifth part of this paper mainly analyzes how to improve the judgment standard of "serious circumstances" for the crime of infringing on citizens’ personal information.This crime belongs to the crime of circumstance,and the violation of citizens’ personal information with "serious circumstances" constitutes a crime.At present,Chinese criminal law judicial interpretation adopts a mixed identification model to identify "serious circumstances",and this identification mode will bring various problems.Therefore,the criteria for identifying "serious circumstances" in judicial interpretations should be adjusted.First,the classification standards of personal information in judicial interpretations of the criminal law should be adjusted in accordance with the provisions of the Personal Information Protection Law.There are two types of personal information and general personal information.This classification method is more inductive,more in line with the criminal law’s protection of personal information,and can classify some highly integrated personal information in the era of big data.Secondly,the amount of illegal income is not necessarily related to the degree of infringement of the legal benefits of the crime,and the standard for determining the seriousness of the crime of “illegal income” should be eliminated.Finally,the criteria for re-offending citizens’ personal information should be adjusted.With reference to the provisions on the standard of re-offending in the judicial interpretation of the crime of theft,the relevant provisions of "two consecutive administrative violations will directly constitute a crime" can be deleted from the judicial interpretation of the crime of infringing on citizens’ personal information,and at the same time,it is clear that the violation of citizens’ personal information will be more frequent when re-offending.low incrimination standards.This not only reflects the crime prevention function of the criminal law,but also conforms to the principle of the balance of crime and punishment in the criminal law.In addition,in judicial practice,the idea of "asylum is easy" for the crime should be changed,lazy justice should be avoided,and quantitative theory should be avoided when determining "serious circumstances",and all criminal circumstances should be comprehensively considered.