Research On The Mode Of Behavior Of The Crime Of Infringing On Citizens’ Personal Information

With the rapid development of the information age,citizens’ personal information has become an important resource and asset,along with it,there are endless acts of infringement of citizens’ personal information.The Criminal Law and judicial interpretations provide a strong basis for combating infringement of citizens’ personal information,but due to the abstract nature of the formulation of the law,it brings a lot of uncertainty to the determination of this crime,and due to the lagging nature of the legislation,many new acts of infringement of personal information in practice have not yet been incorporated into criminal law,so there is still room for improvement of this crime.The promulgation and implementation of the Personal Information Protection Law marked a new era for the protection of personal information in China,this law,as a precursor to the crime of infringement of citizens’ personal information,and as a special law for the protection of personal information in China,will inevitably have a greater impact on the determination and improvement of the manner of this crime.In this context,this paper takes the act of infringing citizens’ personal information as the object of study,classifies the act of this crime,combines the relevant provisions of the criminal law and the predecessor law as well as the relevant doctrine and judicial cases of this crime,analyzes the difficult issues in the determination of the act of this crime,and discusses the necessity and feasibility of the new act of criminalization,so as to provide reference for the determination and improvement of the act of this crime.This article is divided into four parts,except the introduction and the conclusion.The first part is an overview of the manner in which the crime of infringing on citizens’ personal information is committed.The essential attribute of citizens’ personal information is identifiability,and the concept of citizens’ personal information in criminal law should be adjusted in due course after the introduction of the Personal Information Protection Law.The legal interest protected by this crime is the right to self-determination of personal information in the legal interest of individuals.This crime can be divided into illegal provision type and illegal acquisition type,etc.The behavior mode has the characteristics of high occurrence and wide scale,intangibility and concealment,low input and high gain,and close association.The second part is the determination of the act of illegal provision.The connotation of "violation of relevant state regulations" should be limited to violation of laws and administrative regulations on the protection of citizens’ personal information,excluding departmental regulations.The sale is not based on consideration,and the object of exchange includes property interests.The expression of the act of sale includes the exchange of money,the exchange of goods and the exchange of property interests.Provision and sale are inclusive and the provision does not require a specific recipient.The act of providing is manifested in the form of gift and the form of dispersal.In practice,there is controversy as to whether the act of providing personal information that has been made public constitutes a crime,and the rules on the reasonable handling of personal information that has been made public in the Protection of Personal Information Law and the Civil Code should be combined to define the criteria for criminalizing such acts from three levels: the object of the act is the personal information that has been made public or otherwise lawfully made public;the manner of the act does not exceed the reasonable scope;and the result of the act does not infringe on the significant interests of the subject of the information.The third part is the determination of the act of illegal acquisition.The act of stealing personal information of citizens does not require secrecy as an element,nor does it require transfer of possession.The forms of theft include intrusion into computer information system,the use of network technology or other equipment to listen or monitor,and the form of copying.Based on the systemic interpretation method,"illegal" should have the same connotation as "violation of relevant state regulations"."Other methods" are equivalent to theft in terms of the degree of illegality,and "other methods" cannot be expanded arbitrarily.Other methods of illegal acquisition include purchase,receipt,exchange,fraud and other forms.The criminal illegality of the act of using web crawlers to obtain citizens’ personal information should be judged from two levels: the act of violating the preceding law,exceeding the scope of "informed consent" and breaking through the anti-crawling technical measures are the criteria of formal illegality;if the crawling of non-public identifiable personal information,the amount of information crawled or the amount of profit made reaches the level of "aggravating circumstances",it is the standard of substantive violation.The fourth part is the discussion of the criminalization of the illegal use of personal information.In practice,common cases of illegal use of citizens’ personal information include tampering with personal information,fraudulent use of identity information,information harassment,"big data killing" and deep forgery.The current criminal law punishes other crimes incidentally to combat illegal use,and lacks an independent evaluation of illegal use,which directly and precisely infringes on legal interests,making it necessary to criminalize illegal use.The Personal Information Protection Law and other laws provide the basis for the criminalisation of illegal use,and the relevant legislation in foreign countries also provides experience to draw on,making the criminalisation of illegal use feasible.The illegal use of personal information should be incorporated into Article 253(1)of the Criminal Law,and the judicial interpretation should be improved accordingly.