| The crime of infringing citizens’ personal information(hereinafter referred to as“this crime”),as a special crime for protecting citizens’ personal information,its actual effect in judicial practice directly reflects our country’s crackdown on infringement of personal information and the effectiveness of personal information protection.Objective behavior is a core link in the establishment of a crime,which determines the determination of the crime in judicial practice.Based on this,the author will discusses related issues of the two different types,“illegal provision”and “illegal acquisition”,one by one.For illegal offering-type violations,the prerequisite element “provided by the state” in the offering and selling behavior is to indicate that there may be illegal obstructions.Offering and selling behavior have the same range,that is,selling is included in offering behavior,but through the targeted establishment of the two on the sentencing plot,the consistency of their behavior and subjective viciousness is guaranteed.Based on the non-material nature of personal information,it is the proper meaning of the criminal law to interpret the “distribution” behavior that does not have a specific receiving object,that is,the receiving object provided includes an unspecified majority.The legal aspect of the disclosed information can only stay in the acquisition stage,and the subsequent provision and sale are still infringing on the legal interests,and are punished by the criminal law for obviously exceeding the legal scope.The sale of personal information of citizens does not require reasonable consideration,and there is no room for legal sale.As long as the sale will put the relevant rights and interests of the information subject at risk of being infringed,such behavior should be punished.Regarding illegal access violations,the reproducibility and intangibility of citizens’ personal information make it beyond the scope of access to general objects.Therefore,“stealing” in this crime should be reasonably expanded and interpreted as the crime.The "stealing" in is not limited to acquiring and transferring possession,and it can be established only by peaceful means.“Illegal acquisition” refers to the act of acquisition without a valid reason,which cannot be justified,and should be presumed to be illegal.Illegal means is not a requirement for the establishment of “illegal acquisition by other methods”.Acquisition by other methods,as long as there are no reasons for illegal obstruction,illegal acquisition is established.The act of obtaining citizens’ personal information on the public platform is legal.Subsequent violations do not change the legitimacy of the acquisition,and the source of the personal information obtained on the public platform is not differentiated.In terms of the criminalization of behaviors related to this crime,“human flesh search” has complex attributes,which cannot be generalized.For this crime,the intervention stage of the criminal law should start with the core act of providing personal information.With regard to the criminalization of “illegal use”,this article subdivides the illegal use according to the source of the personal information used,and obtains the illegal use after illegal acquisition and the use of personal information to commit other crimes after legal acquisition,can be punished through this crime or related crimes.Only if the subject who legally obtains personal information carries out illegal use that does not involve other crimes,there is a problem of punishment and leakage.However,this kind of behavior does not yet have the necessity and urgency of criminal law punishment.If blindly commit the act of using personal information,there will be an unreasonable result of "either use of the criminal law without punishment or punishment".For the tort,before the pre-law on personal information has been established,it is not appropriate to directly crack down on illegal use. |
