Research On Difficult Problem About The Crime Of Infringement Of Personal Information Of Citizens

In recent years,the crime of infringing citizens’ personal information with the citizen’s personal information as the object of crime has shown a high incidence.A series of vicious incidents caused by the disclosure and illegal acquisition of citizens’ personal information,including the "Xu Yuyu fraud case",have awakened the "butterfly effect" that may be caused by the crime of infringing citizens’ personal information.The Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Citizens’ Personal Information(hereinafter referred to as the "Explanation")officially implemented on June 1,2017 provides specific applicable standards for the identification of crimes against citizens’ personal information and the conviction and sentencing.To a certain extent,it has solved the difficult problems and disputes arising in the judicial practice of this crime.However,it should be noted that due to the complex and diverse judicial practice andthe lack of relevant citizens’ personal information protection legislation,the identification of crimes against citizens’ personal information and the conviction and sentencing still face many problems to be solved.Based on the "Interpretation" and the relevant provisions on the protection of personal information,this paper analyzes and discusses the criminal object,objective behavior and the number identification problem in judicial practice,in order to help the protection of citizens’ personal information.Provide reference and reference for judicial practice.In addition to the introduction,this article is divided into the following three chapters.The first chapter mainly analyzes the concept of “citizen personal information”.First of all,starting from the definition of "citizen’s personal information",this paper sorts out the definition of "citizen’s personal information" in the relevant legislation on the protection of citizens’ personal information in recent years,and finds that the scope of its culling is expanding..At the same time,through the interpretation of the "citizen" of the "citizen’s personal information",it is further clarified that the scope of the citizen should include foreigners and stateless persons,but does not include legal persons and deceased persons.Secondly,when grasping the identity standard of“citizen personal information”,it should be noted that the object of identification is a specific natural person,the way of identification should include direct identification and indirect recognition,and the judgment of the degree of recognition in indirect recognition should be combined with subjective and objective The factors are comprehensively judged three questions.Third,from the extension of "citizenpersonal information",both the "traveling track" information and the "property information" should be more rigorous in judging.The “traveling track” information should be dynamic information and meet the identification criteria at the same time,while the “property information” should be true and judged by the ability to reflect the property status of a particular natural person.The second chapter mainly analyzes the objective behavior of the crime of infringing citizens’ personal information.According to the different ways of behavior,the objective behavior of this crime can be divided into two categories: “leakage type”and “acquisition type”.The judgment of the illegality of the "leak-type" crime shall be subject to the "violation of the relevant provisions of the state".In the specific judgment,it shall be judged according to relevant laws and administrative regulations,and the role of departmental rules shall only be to determine relevant laws and administrative regulations.The meaning.“Sale” should be understood as a paid transfer for the purpose of profit,and the key to understanding “providing” is to provide personal information of citizens that should not be known to others,and there should be an inclusion between the two.Non-parallel relationship.In addition,the provisions of Article 5,paragraph 1(a)of the Interpretation are the objective punishment conditions for this crime,which are exceptions to the responsibility,and there is no improper expansion of the scope of criminal punishment.However,considering the nature of its exceptions,the scope of its application should be limited to the track of trajectory,and the information on the trajectory of the trajectory should be strictly restricted.At the same time,the understanding of "crime" should adopt theconcept of crime of illegal meaning.In the "acquisition type" crime,the object of "stealing" should be intangible,and at the same time,it is not required to transfer possession,nor is it based on secrets.Usually,only the actor’s willingness to violate the information subject and obtain the citizen’s personal information in a peaceful way can be considered as "stealing." The stipulations of "Illegal access to personal information of citizens by other means" should include three situations,that is,the act of "stealing" the homogeneity of the means of illegality and harm,in violation of relevant state regulations,purchase,acceptance,The illegal acquisition of illegal access to citizens’ personal information and the collection of citizens’ personal information in the course of performing duties and providing services.The third chapter mainly analyzes and interprets the rules for determining the number of citizens’ personal information.In the case of "mixed" personal information of citizens,the author believes that in principle,"objective theory" should be used as the standard for calculating and determining the quantity of information,and the amount of information involved is far greater than that.The criteria for conviction established by Interpretation led to the fact that the amount of information itself has little significance for conviction and sentencing,and the number of citizens’ personal information can be determined by adopting a "subjective" view.Secondly,in the case of mixed information,the “citizen personal information” is converted.Usually,it should be converted according to the ratio of “1:10:100”.However,in the case of fairness in this way,it should be The information involved is further divided and considered based on factors such as the amount of information involved.Third,thenature of Article 11(3)of the Interpretation is a provision of a presumptive certificate of the public prosecution agency in criminal proceedings and a provision for the burden of proof of the defendant.In the judicial practice,through the detection of the highly probabilistic quantitative sampling test,in the case that the number of personal information of a large number of citizens meets the conviction standards stipulated in the Interpretation,as long as the personal information of the citizens involved is involved.If the number reaches “five thousand” or more,it can be recognized as“batch citizen personal information”,and then the presumption rule of Article 11(3)of Interpretation is applicable.