| The rapid development of information technology has made people’s lives more and more convenient.In the information society,our identity,characteristics,preferences,and track have become a series of digital codes.We can enjoy our information whenever we need.However While the information society brings convenience to people’s lives,it is also accompanied by huge risks.The personal information of citizens has great economic value,which tempts the criminals to take risks to obtain the personal information of citizens,use information or buy and sell information to seek benefits,and infringe on the personal information of citizens has caused problems for the normal life of citizens,and even infringed upon The personal and property rights of citizens.In order to crack down on the violation of citizens’ personal information,the Criminal Law Amendment(Ⅶ) of 2009 took the lead in criminalizing the “sale、illegal provision of personal information of citizens”and “the illegal acquisition of personal information of citizens”.Then Internet technology continues to develop,the way of infringing citizens’ personal information and the types of citizens’ personal information continued to increase.The Criminal Law Amendment(Ⅸ),promulgated in 2015,combines the crime of “selling and illegally providing citizens with personal information” and “the crime of illegally obtaining citizen’s personal information” into the crime of “infringement of citizens’ personal information”.In order to guarantee the implementation of the law,relevant judicial interpretations were issued in 2017.Although the legal and judicial interpretations have made specific provisions on the protection of citizens’ personal information,they have solved some problems in practice.However,there are still inconsistencies in the understanding of legal provisions in judicial practice.In order to correctly apply the law,this article sorts out the protection history of citizens’ personal information,and combines judicial interpretation with actual cases to explain the controversial issues in practice.In order to provide a reference for the problems encountered in practice.The full text is more than 30,000 words and is divided into four parts afterremoves the introduction and conclusion.The first part of the first chapter is going to sort out the protection of citizens’ personal information in China’s criminal law.In 2009,China introduced the "Criminal Law Amendment(Ⅶ)" and add the crime of ‘selling,illegally providing citizens’ personal information’ and ‘illegal access to citizens’ personal information’".and then In order to adapt to the change of infringement of citizens’ personal information,was introduced in 2015,and compared with the Criminal Law Amendment(Ⅶ),the Criminal Law Amendment(Ⅸ) expand the criminal target and criminal object.The punishment is more stringent,and the crime of “selling、illegally providing citizens with personal information” and “the crime of illegally obtaining citizen’s personal information” are combined into “crime of infringing citizens’ personal information”.In order to unify the implementation of the law,in 2017,the "Interpretation of Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Citizens’ Personal Information" was issued,it explained the concept in the law and content of the dispute.The second part points out the problems which are still existing in the law and interpretation,including the scope of citizens’ personal information,the problems in objective violations,and the understanding of sentencing circumstances.The second chapter focuses on the personal information of citizens.The right attributes of citizens’ personal information is “the right of personal information”;the scope of citizens includes foreigners and stateless persons,and the personal information of the deceased can be protected by protecting the rights of their relatives.According to the laws and judicial interpretations of our country,citizen’s personal information is information that can identify the identity and activity of a particular person,either alone or in combination with other information.The property status and account password can weakly identify person,however,because of the property security of citizens involved,it also belongs to citizens’ personal information.When identifying indirect personal information,it is necessary to pay attention to whether the information is related to the personal safety of citizens.The connection point of indirect citizen personal information should not be too many,and the method shouldbe simple;personal sensitive information only includes trace information,communication content information,property information,and credit information.In the identification,we must grasp the characteristics of this information,and consider whether the information affects the safety of citizens’ personal property seriously.Information that may affect the safety of citizens’ personal and property,accommodation information,transaction information,health and physiological information,and communication record information should be noted when the information is identified,and whether the information reflects other characteristics of the citizen’s personal property.Personal biometric information is information that may affect the safety of citizens’ personal and property;Whether the criminal law should be involved in Public citizen information should be discussed according to whether the subject of the information agrees to disclose.The third chapter focuses on the objective violations of the crime of infringing citizens’ personal information.Violation of state regulations refers to laws,administrative regulations,and departmental rules Departmental regulations are refinements of citizens’ personal information in laws and administrative regulations.The sale does not require price,the income includes property benefits,and the provision is provided free of charge;the theft should be carried out in secret,and whether it needs to transfer possession is depend on the carrier of the information and the way of stealing information;Illegal access refers to the violation of relevant state regulations to obtain citizen’s personal information,including: means prohibited by law,purchases,receipts and exchanges in violation of relevant state regulations,and acts that similar with purchase,acceptance,exchange.Collecting personal information of citizens in accordance with the methods stipulated by laws and regulations,and also including obtaining citizen’s personal information without authorization from the information subject;the law should explicitly prohibit the illegal use of citizens’ personal information,such as theft of identity.The fourth chapter is the interpretation and analysis of the specific plots in Interpretation.If one knows that others will use citizen’s personal information to commit crimes and still sell or provide personal information,it may be establish arelated crime helper,it should differentiate by mens rea.The “corresponding proportion” in the calculation of citizen’s personal information refers to 1:10:100;the batch information refers to 5000 pieces of information.The precondition for using the sample survey to detect the authenticity of the information is when it is hard to determine the number of citizens’ personal letters.The sample survey should remove the information that is obviously duplicated or untrue in the total information.The prosecution must prove that the real information must at least be reached relevant standard;the amount of illegal income should not be removed,one purchases or accepts personal information of citizen because of legal business,the benefit obtained only includes the amount of income after the cost is removed.The plot to sell or provide personal information to citizens in the course of performing their duties or providing services,Cannot be applied in both conviction and sentencing circumstances to avoid repeated evaluation;The circumstances that are particularly serious,the quantity standard is too low,and the quantity standard should be raised. |
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