| The crime of infringing on citizens’ personal information is one of the important means to protect citizens’ personal information.However,the determination of this crime has always been a thorny issue in judicial practice.This article selects three representative judicial cases,and through exploration,the common problems reflected by the cases in the criminal identification of this crime are mainly reflected in the unclear nature of the legal interests of this crime,the "violation of relevant national regulations",and the vague positioning of the "serious circumstances" system.First of all,on the protection of legal interests of this crime.At present,many theories have been formed in the academic field to protect the legal interests of this crime,such as the theory of personality rights,privacy rights,and property rights,but they are too one-sided to reveal the nature of personal information.The paper confirms that the legal benefit of this crime is the right to personal information self-determination and the personal social benefits derived from it,by sorting out important criminal law precedents such as the Civil Code and the Personal Information Protection Law of the People’s Republic of China,and taking into account the purpose and task of criminal law protection.Secondly,the systematic positioning of the crime of "violating relevant national regulations".The Criminal Law Amendment(9)modifies the expression "violating national regulations" in the Criminal Law Amendment(7)to "violating relevant national regulations".Regarding the understanding of the different expressions of the two,the paper compares the legal scope covered by the general provisions of the criminal law and judicial interpretation,refutes the argument that the two have a relationship between inclusion and inclusion,and concludes that the two should belong to a cross relationship,And clarify its connotation.On this basis,the paper further studies and judges the systematic positioning of "violating relevant national regulations",arguing that it is not a constituent element in the legal provisions,but an element of illegal prompt.Finally,on the issue of determining the "serious circumstances" of this crime.The positioning of "serious circumstances" in this crime in the criminal system is not clear,and the "mixed identification" model adopted by judicial interpretation for "serious circumstances" lacks inherent logic,and individual standards cannot better reflect the degree of legal interest infringement.After reviewing the academic theory of the positioning of the "serious circumstances" system,it is believed that the "serious circumstances" of this crime should belong to the elements of the illegal constitution.Based on this,the "type and quantity of information" standard and the "illegal income" standard for determining the "serious circumstances" of this crime should not be abandoned,but need to be further refined on the existing legal basis. |
