The Practical Dispute And Theoretical Analysis Of The Crime Of Violating Personal Information

The crime of infringing personal information was set up as a separate charge in the Criminal Law for the first time in 2005.With the introduction of amendments to the Criminal Law and related judicial interpretations,the protection of personal information in Chinese laws has made great progress and has been strengthened Criminal protection of personal information.However,judicial cases reflect that the protection of personal information by Criminal law still has following problems: First,crimes of infringement of personal information and using personal information to commit fraud are not uniform.Some are treated as the crime of fraud but some were sentenced to multiple crimes.So there is a problem of repeat-evaluation of criminal behavior in cases where multiple crimes are sentenced to be sentenced to multiple crimes.So the question is over-evalution of criminal behavior in some cases where have been senrenced to multiple crimes.Second,our country has not included the "illegal use" of personal information into the criminal law causing limitation in the evaluation of criminal behavior in some cases.Thirdly,the judge’s attitude of "avoid the difficult and choose the easy" in the process of hearing cases has increased the difficulty infair conviction in our country’s judicial practice.Fourth,there is a problem of cross-confusion between different levels of information which involves how to judge this issue whether the "combined" information is one or several.Fifth,when public security organizations and procuratorial organizations seize bulk information,it is difficult to calculate the bulk information accurately within a reasonable time.Analyzing the above problems through empirical analysis and literature research methods,we found that there are three reasons for the above problems: First,the criminal object and the criminal target are not clearly identified but the criminal object is our accurate identification of the criminal behavior.the accurate identification of "citizen’s personal information" is the premise for us to calculate the amount of personal information.After a controversial analysis of the criminal object theory,the criminal object of this crime should be the right to personal information with personal attributes and property attributes.Second,the lack of the amount of personal information in the elements of a crime is one of the reasons why it is impossible to accurately calculate the amount of personal information.Third,by analyzing the classification of information types in the "Guidelines for Cases",it is found that the scope of highly sensitive information is limited to only 4 types which would not meet the needs of judicial practice.To consider solving the above problems,from the legislative and judicial levels,we need make some meature.First,at the legislative level,through the analysis of the necessity and rationality of the "illegal use" behavior included in the criminal law,the behavior should be included in the criminal law and there is no need to separately establish a new crime.Second,because personal biometric information which is currently used more and more widely and easily collected illegally is unique and unchangeable,personal biometric information should be adjusted to highly sensitive information.Third,the basic feature of personal information is identification.As long as the information involved in the case can point to a specific person,it should belong to the personal information stipulated by the criminal law.Fourth,after analyzing the controversy about the status of the amount of personal information in the elements of the crime,the amount of personal information should be a sentencing element for the crime of infringing on personal information and it is subjective and objective.First,at the judicial level,in cases where the crime of infringing personal information cannot be included in the evaluation of the crime of fraud,multiple crimes should be punished.But when the circumstances of the crime are determined to be serious,the use of personal information obtained should not be considered repeatedly.The purpose of the crime and the way to obtain information are two factors in the performance of one’s duties.Second,for "combined" personal information,judgments are made by combining the core elements of the information and the purpose of the information.Third,criteria for determining "serious circumstances" in personal information are divided according to the "two-echelon" type and only when the judgment of the first echelon is not sufficient to determine,the elements in the second echelon are considered.Fourth,distinguish whether "citizens’ personal information" is "one piece" or "multiple pieces" through a combination of subjective and objective methods.Fifth,calculate the "three-step identification" rule for batch information that meets the quantity standard,the inspection object and the objection.Sixth,in judicial practice,formulate standards for judging the type of information,judging the type of legal interest whether the amount of information meets the batch information and the "four-step model" that calculates the batch information step to calculate the amount of personal information.