On The Criminal Law Regulation Of Handling Public Personal Information Behavior

The data itself has the characteristic of easy storage and transmission,and citizen’s personal information,as a form of data,also possesses this characteristic,which leads to the increasing number of crimes related to personal information infringement.The leakage of citizen’s personal information has resulted in the infringement of their life and property security.The security of citizen’s personal information has become a hot topic in current society,and protecting citizen’s personal information from infringement is a severe challenge facing China’s rule of law construction.Therefore,the "Criminal Law Amendment(IX)" was enacted in 2015 to strengthen the protection of citizen’s personal information and establish the crime of infringing on citizen’s personal information.Subsequently,in 2017,the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringing on Citizen’s Personal Information"(hereinafter referred to as the "Personal Information Judicial Interpretation"),which elaborates on the scope of "citizen’s personal information,"clarifies the behavior patterns,and standardizes the application of law.However,there is still ambiguity in understanding this crime.In criminal cases related to the handling of public personal information,there are considerable disputes,such as whether the public personal information constitutes "citizen’s personal information," and how to link the processing rules of public personal information in the prior laws with the Criminal Law.This has led to the majority of the handling of public personal information being deemed as infringing on citizen’s personal information judicial practice.However,after the promulgation of the Civil Code and the Personal Information Protection Law,some judicial organs have made non-guilty judgments on the handling of public personal information based on the"reasonable handling" principle in prior laws.However,in the author’s view,it is inappropriate to simply classify the handling of public personal information as guilty or nonguilty.Instead,it should be based on the nature of the public personal information itself and the wishes of the information rights holder to classify and discuss different types of handling of public personal information,so as to clarify the standards for guilt and non-guilt.Specifically,it is divided into the following parts:Part Ⅰ:The current situation and problems of criminal regulation of public personal information.This section mainly points out the problems in the regulation of the behavior of disclosing public personal information by reviewing judicial cases.The standard forjudging the behavior of disclosing public personal information is unclear in China’s criminal justice practice.The judicial authorities tend to impose criminal regulations on the behavior of selling or providing public personal information to others on the grounds that they have not obtained the "secondary authorization" of the information subject.This approach directly results in some behaviors that do not violate legal interests being recognized as crimes,making the crackdown on this crime excessive.There are also a small number of judicial authorities who start from the provisions of the prior law and define some behaviors of processing public personal information as "reasonable processing" to justify the legality of the behavior and the charge.However,due to the unclear provisions of criminal law and prior law,different judgments for the same case are common.Part Ⅱ:The cause of the dilemma in the criminal regulation of processing disclosed personal information.This section mainly starts from the interests involved in processing disclosed personal information and the link between criminal law and prior law to explore the cause of the dilemma in the criminal regulation of processing disclosed personal information.The reason why judicial authorities come to different conclusions when judging whether to impose criminal penalties on the processing of disclosed personal information is that some judicial authorities have deviated from the recognition of the harmfulness of processing disclosed personal information to legal interests and have recognized some behaviors without legal interest harm as crimes.In addition,the lack of clarity in the legal provisions has led to difficulties in legal application.The law does not specify whether disclosed personal information is "personal information of citizens" protected by criminal law.This issue is critical as to whether it can be protected by criminal law.At the same time,the regulation of the processing of public personal information in the Civil Code and the Personal Information Protection Law is based on the principle of "reasonable processing."However,this principle is not specifically described and can only be grasped by judicial authorities in practice,resulting in deviations in interpretation.Part Ⅲ:Typological Thinking on Handling Public Personal Information.In this section,specific behaviors related to handling public personal information are classified to make concrete judgments about the criminality of such behavior.Handling public personal information cannot simply be categorized as criminal or non-criminal because of the various situations in which personal information can be publicly disclosed.Different circumstances have different impacts on the determination of whether the behavior is criminal or noncriminal.Therefore,it is necessary to consider the specific situations of the public information to make separate judgments.Because the core principle of personal information protection is the "informed consent" principle,the voluntariness of the information subject must be considered when classifying public personal information.In addition,the"reasonable processing" requirement in the preceding law only applies to legally disclosed information.Therefore,the legality of the information must also be considered.When personal information is voluntarily and legally disclosed,the protection of the citizen’s information must be given priority,and the behavior of the handler must be evaluated based on whether it meets the reasonable expectations of the information subject to determine if it is criminal.When personal information is disclosed involuntarily but legally,the focus should be on safeguarding the value of information circulation.The handler’s behavior should be evaluated based on whether it meets the initial purpose of public information disclosure to determ ine if it is criminal.When personal information is disclosed illegally,the handler loses the basis of "reasonable processing," and any processing behavior could lead to criminal liability.Part Ⅳ:Criminal Law Regulation Path for Handling Public Personal Information.In this section,the regulation path for handling public personal information in criminal law is clarified by examining the legitimacy of public personal information,defining the scope of"reasonable processing," and determining the substantive legal interests at stake.First,the legitimacy of public personal information is assessed,and if it is illegally disclosed,any processing of it is illegal.If it is legitimately disclosed,the next step is taken.Secondly,for legitimately disclosed public personal information,the scope of "reasonable processing" is determined through a perspective of interest balancing.Voluntarily disclosed information should place more emphasis on information security,while non-voluntarily disclosed information should place more emphasis on safeguarding its value.Finally,the processing behavior should be assessed for its infringement on legal interests through a comprehensive evaluation of subjective and objective factors.