Study On The Crime Of Infringement On Personal Information Of Citizens For Obtaining

According to the Ninth Amendment to the Criminal Law adopted by the Standing Committee of the National People’s Congress, the article concerning the crime of infringement on personal information of citizens is modified, but the modification is mainly about the infringement on personal information of citizens by providing the Information, as for the infringement on personal information of citizens for obtaining the Information(referred to as the crime of illegally obtaining personal information of citizens before the Ninth Amendment to the Criminal Law, hereinafter referred to as the Crime), there is no further stipulation, although which is expressed indistinctly as well as opinions about the Crime are different both in theory and in practice. In handling cases with regard to illegally obtaining personal information of citizens, this also results in great divergence in judicial practice, such as how to judge personal information of citizens, how to prove illegal means, how to explain serious circumstances, etc. Therefore, combined with cases, preliminary insights are put forward as for the judgment of the Crime in this paper after summarizing and analyzing related problems.There are three parts in this paper to elaborate related issues:The first part defines the concept of personal information. Firstly, combined with relevant definitions of personal information in foreign law, opinions of Chinese scholars are sorted out and analyzed comprehensively, on the basis of which the connotation about personal information of citizens in China is summed up. Personal information of citizens should include features in three aspects:(1) to recognize the identifications of specific persons, namely, the recognition feature; (2) to have the value protected by criminal law; (3) not to go against personal willingness of citizens, which is also called self-determination of personal information. Secondly, legal attributes of personal information are made explicit. Although there are various theories, such as property rights, privacy, basic human rights, but the one which is most accord with legal interests protected by criminal law is to attribute right of personality to personal information of citizens.The second part identifies behavior ways of infringement on personal information of citizens for obtaining. The research has focused on analyzing "other illegal means to obtain", where "illegal" not only refers to the illegality of means, but also reviews whether there is justification for cogent reason. The cogent reason includes two aspects, of which one is the legitimacy of identity, the other is the legitimacy of purpose. For the criterion of judgment, the content of illegally obtaining specifically consists of two aspects, that is, whether the behavior of obtaining personal information has had consent of the citizen himself and whether the behavior is permitted under current legal framework. Specific behavior ways are judged. Cheating, robbery, violent stress, purchase, and some receiving all belong to the obtaining behaviors of the Crime. Finally, several special behaviors of obtaining personal information are analyzed respectively, such as the mobile phone positioning, private detection, cyber manhunt, etc.The third part judges "serious circumstances". Since the Crime adopts the legislative form of circumstance offense, this part firstly sorts out theoretic doctrines of serious circumstances. I agree with objective theory of "serious circumstances". With analysis of the theoretic system both in the field of illegality and responsibility, this paper puts forward that circumstances should be considered as circumstances in objective aspects, and subjective circumstances can be shown through objective circumstances. Secondly, as for serious circumstances of the Crime, comparative analysis is made in judicial practice and theoretic doctrine. Finally, for the judgment criterion of the Crime in serious circumstances, whether the circumstances is serious or not, it depends upon the amount of personal information illegally obtained, the number of infringement times, how much of the profit amount and badness of the behavior way. Even so, if serious circumstances cannot be judged, consequent and complementary circumstances should be considered in combination.