Research On Judicial Application Of "Severe Plot" In Crime Of Infringing Citizens’ Personal Information

In the era of data,the importance of information is gradually rising,and the scope and ways of subjects to obtain information are constantly expanding,and the subjects and links that can leak information are also increasing.In order to strengthen the crackdown on information leakage,the Legislative Assembly passed the Criminal Law Amendment(IX)in 2015,which punishes the crime of selling,illegally providing citizens’ personal information,and illegally obtaining citizens’ personalities as stipulated in Article 253.The crime of information is integrated into the crime of infringement of citizens’ personal information.Although the "Criminal Law Amendment(IX)" stipulates that "serious circumstances" are the conditions that must be met to establish a crime of infringing on the personal information of citizens,there are many differences between the theoretical and practical circles because the criteria for its determination are not clearly defined.In this regard,on May 8,2017,the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the "Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Citizens’ Personal Information",which stipulated unified regulations on the determination criteria of "serious circumstances"."Serious circumstances" is a comprehensive element stipulated in the criminal law and reflects the degree of social harmfulness of behaviors.Therefore,the content of social harmfulness determines the content of "serious circumstances".Due to the ambiguous connotation of social hazards and the unclear positioning of "severe plots" in the criminal system,the judicial interpretation adopts a mixed identification model,resulting in problems such as repeated evaluations,subjective guilt,and violation of the principle of self-responsibility.At the same time,the formalization of judicial determination led to the emergence of quantitative theory in practice,that is,only the "quantity of information" or "illegal income" was used as the sole basis for evaluating illegality during judicial determination."Severe plot" as an element of the illegal constitution,should reflect the social harmfulness of the behavior from an objective perspective.Based on this,the "information use" elements that reflect the subjective viciousness,the "former" and "special status" elements that belong to the sentencing plot should not be included criteria for "severe plot".In addition,when judging the elements of "illegal gains" and "third-party intervention",judicial personnel should adopt substantive hermeneutics and use legalprotection as a guide to make substantive judgments on illegality.Specifically,when judging the element of “third-party intervention”,judicial personnel should narrow down the scope of “tracking track” information.When judging the "illegal income",judicial personnel should combine "information type and quantity of information" with it to avoid including crimes that conform to the regulations in form but are not illegal in nature.