| Under the background of the information age,the rapid development of big data technology,and the continuous improvement of information utilization efficiency and utilization methods,which has brought great convenience to social life.At the same time,the value of personal information is gradually highlighted,and there are various means and ways of information acquisition,which also induce many illegal and criminal activities that infringe on citizens ’personal information to continue to be high,making the rights and interests of citizens’ personal information seriously infringed,and posing new challenges for the protection of citizens’ personal information.In recent years,in order to strengthen the protection of citizens’ personal information and promote the rational use of information,China has constantly improved the relevant legislation of personal information,and gradually formed a relatively perfect personal information protection system.Various departments and laws coordinate with each other to achieve good connection and cooperation.Among them,the criminal law,as the most severe punishment measure and the guarantee law of other departmental law,plays an irreplaceable role in protecting personal information from infringement and punishing information crimes.However,due to the complexity and changeable reality and the general provisions of this crime,it is impossible to respond to practical problems one by one,which leads to some problems and disputes in this crime in judicial practice.Therefore,this paper is based on one of Article 253 of this crime of the criminal Law and the interpretation of personal information,combined with the relevant theories of the academic world and the reality of the judicial application of this crime,this paper combs and analyzes the specific provisions and identification standards of this crime,and summarizes the realistic dilemma of the judicial determination of this crime,in order to respond to the difficult problems of the judicial application of this crime.First of all,this paper summarizes the legislation of the crime of infringing citizens’ personal information,this crime legislation process and review the specific provisions,can be found that the crime modified and explain further refinement,has gradually tend to perfect,for judicial practice conviction sentencing provides a clear basis and operational strong judgment criteria.Then,this paper collects,summarizes and analyzes the judicial application data of the crime of infringing citizens’ personal information in recent years,and presents the relevant data in the form of charts,so as to have a general understanding of the realistic judicial application of this crime.Next,On the basis of sorting out the relevant legal provisions and judicial application of this crime,Combined with the statistical data of the focus of disputes in the judicial practice of this crime,Summarize the following realistic dilemma of judicial identification: the first point is that the identification of citizens’ personal information is not clear enough,Specifically speaking,the legal interests of this crime are still controversial,Not specified,And the scope of personal information delineation is unclear;The second point is that the identification of the harmful behavior mode of this crime is not comprehensive,The lack of some uniform standards,And the current lack of regulation on the illegal use of the behavior;The third point is that the identification standard of "serious circumstances" of this crime lacks overall consideration,The judicial identification standards of various plot elements need to be further standardized.Around these difficult problems and practical difficulties arising in the process of judicial identification,the paper is discussed in the next step.In terms of the identification of citizens ’personal information,the paper demonstrates and analyzes through three sections: the first section is to discuss the basic connotation of citizens’ personal information,which should be identifiable,true and effective and the relevance of legal interests.The second section summarizes the controversial views on the nature of this crime,and analyzes the representative views of different theories,and draws relevant conclusions after further comparison.The third section focuses on the definition of the scope of citizens ’personal information,starts from the identification standard and the relevant identification of the public information and the track information,and discusses these aspects to reasonably delineate the scope of citizens’ personal information.In terms of the identification of the harmful behavior mode of this crime,according to the nature of the implementation behavior,it can be divided into "illegal provision" behavior and "illegal acquisition" behavior.Based on the dispute points of judicial identification of two kinds of acts,combined with relevant supporting legal provisions and judicial interpretation,the paper analyzes the scope and methods of all kinds of behaviors.In addition,it is further proposed that there is a lack of relevant regulations on illegal use behavior.Compared with the provision behavior and acquisition behavior,illegal use behavior has more serious legal benefit infringement and worse social harm,and should be regulated.In terms of the identification of the "serious circumstances" standard of this crime,the article sorts out the many specific plot elements stipulated in the Interpretation,and defines the rationality and specific applicable rules of these standards.On this basis,the ideas and countermeasures of the corresponding problems are put forward,including the retention of the information use standard,the further optimization of the information type and quantity standard,the corresponding limitation of the specific application method of the gold case standard,and the deletion of the subject identity standard and subjective malignant elements.So as to optimize the standard of conviction and sentencing,and further realize the fairness and justice of conviction and sentencing. |
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