| With the progress of China’s data era,the connotation and extension of personal information are gradually occurring Variation.The extensive use of Internet technology has strongly promoted the development of Chinese society,and at the same time,it has also been accompanied by it.There are a lot of new issues,and telephone harassment and telecom fraud due to personal information leakage continue.It has seriously affected the personal and property safety of citizens and their daily work.Judicial Interpretations and Individuals.The promulgation of Information Protection Law provides for determination of the constituent elements on citizens’ personal information.It is fundamentally followed,but in practice,there is a phenomenon of only quantity theory in the determination of "selling" behavior,and infringement of open citizens.Whether personal information constitutes a crime or the existence of illegal acquisition of personal information for lawful business activities.disagreements,etc.This article is divided into "selling,offering" and "illegally obtaining" according to the different constituent acts.There are two types of behavior of citizens’ personal information,and this paper takes these two types as the research objects to deal with the infringement of citizens.Carry out a systematic study on the judicial determination of the constituent elements of the crime of individual message.The substances are as follows:Part I: Analysis of the legal interests of citizens’ personal information.Firstly,by sorting out the views of the academic circles on the legal and beneficial attributes of citizens’ personal information,the theories of individual legal benefit,transpersonal legal benefit,and compound legal benefit are evaluated separately.In the face of a complex information society,the above views appear to have certain limitations.Secondly,this paper argues the legitimacy of the right to self-determination of personal information based on the Civil Code and the Personal Information Protection Law.Analyze the public legal and beneficial attributes of personal information from the nature of information,judicial cases,etc.This article argues that the criminal law implements a double protection of personal information,as long as certain public law beneficial attributes do not conflict with citizens’ right to self-determination of personal information,they must be protected by criminal law.In other words,protecting the stability and tranquility of citizens’ information life is ultimately the legal interest of protecting the right to self-determination of personal information.Part II: Analysis of the sale or provision of citizens’ personal information.First,clarify the meaning of the violation of relevant national regulations,and when it is criminalized as an essential element of this crime,departmental rules are not included;When used as a reminder of the cause of illegal obstruction,departmental rules can be used as the cause of the crime to substantially prevent the violation of the law.Secondly,the nature of sale and provision is different,sale is an act for the purpose of obtaining benefits,and provision is usually free,the social harm of the two should be different,in the conviction and sentencing can not be based on the amount,should be after determining the type of personal information,the amount of information and the amount of illegal gains,the punishment should be regulated.Finally,under the unity of legal order,reasonably delineate the criminalization boundary of infringement of disclosed personal information,classify disclosed personal information based on typological thinking,and provide an objective standard to protect disclosed individuals reasonable use and protection of information.Part III: Analysis of illegal acquisition of citizens’ personal information.First,determine the nature and specific manifestations of illegal access to citizens’ personal information.Second,whether there is a duplicate evaluation of the conduct of obtaining other personal information of citizens in the course of performing duties or providing services,as to the practice of such special identity subjects.Through empirical research,this paper explores whether subject identity has an impact on sentence length and probation,and concludes that people with special identities have a negative correlation with sentence length through the results of t-test and regression analysis,which is easier to obtain lighter punishment than ordinary subjects.There is no statistically significant application of probation by special subjects,that is,the research hypothesis in this paper is not supported,and there is no problem of repeated evaluation of special subjects in practice.At the same time,it was found that positive correlation between withdrawal of unlawful gains and probation,and withdrawal of unlawful gains,as a circumstance affecting preventive sentence,had an impact on the application of probation.The reasons for the significant reduction of sentence length by special subjects are analyzed from the perspective of special prevention necessity and penal value.Finally,illegal acquisition of personal information for legitimate business activities.There may be two extremes in the application of Article 6 of the Interpretation,and this article argues the rationality of criminalizing lawful business conduct from the perspectives of the principle of proportionality of criminal responsibility and punishment and the protection of legal interests.In response to the above problems,try to clarify the standards for categorizing and determining personal information,establish rules for determining the amount of information,and apply "other serious circumstances" to illegally obtaining more than 50,000 pieces of personal information of ordinary citizens.The following contributions are possible in this article:First,by sorting out the viewpoint of the legal interest of citizens’ personal information,combined with the relevant provisions of the preceding law on citizens’ individual information,this paper argues that the criminal law implements a double protection of personal information.On the basis of clarifying the legal interests of the protection of this crime,it is proposed to analyze the controversial issues in the judicial application of the constituent elements of the crime of infringing on citizens’ personal information,explore the reasonableness of the separate provisions on purchasing and receiving citizens’ personal information for lawful business activities in Article 6 of the Interpretation,analyze the criminalization disputes of "lawful business" behavior,and construct rules for determining the amount of information.Second,The article mainly downloads the criminal judgments on citizens’ personal information published between 2015 and 2021 in batches,conducts statistical analysis on the identification of this crime as a method in current judicial practice,and uses statistical results such as contingency tables and regression analysis to present visualizations,in an attempt to better reflect the current judicial situation through charts and other forms.By sorting out the theoretical academic controversies,this paper uses empirical research methods to explore whether the special identity subjects in practice violate the principle of prohibiting repeated evaluation,echoing the theoretical controversies,and then analyze the possible reasons behind them according to the results of regression analysis.About shortcomings,first,due to the lack of my professional theoretical level,it may be that this paper lacks a certain depth of discussion and demonstration of the guiding significance of the legal interest on the interpretation of constituent elements.Second,due to limited computing resources,the author only downloaded the verdicts between 2015 and 2021 when downloading the sample,and did not download the research data of 2022;In the statistical analysis of the behavior in the judgment,in addition to the statistics according to the determination of the judgment,some samples added personal subjective factors,so there is some bias in the individual data presented in this paper. |
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