The Incriminating Boundary Of The Crime Of Infringing Citizen’s Personal Information

In today’s society where information is wealth,while people are enjoying the digital dividend brought by the era of big data,various incidents of personal information disclosure are also common,and crimes of infringing on citizens’ personal information are increasing at a high rate.In order to protect the information rights and interests of citizens from infringement and crack down on such crimes,it is necessary to clarify the constitutive elements of the crime.The content of legal interest plays a guiding role in clarifying the constituent elements of each charge in the special provisions of criminal law.There are two mainstream views on this crime.The first view is the personal legal interest theory,which holds that the protection interest of the crime of infringing citizens’ personal information is the personal information interest.The second view is supersensitive legal interest theory,which advocates that information has strong mobility and social attribute,which has already gone beyond the scope of personal attribute,so the legal interest protected by this crime should be social order and national security.There is no clear conclusion about the legal interest dispute of this crime.The two mainstream theories both have some defects.Compared with them,the theory of combining public and private legal interests is beneficial to better demarcating the boundary of civil punishment.The theory of combination of public and private legal interests is a double theory of combination of legal interests with the content of protecting supers individuality legal interests and individual legal interests.This theory is not only coordinated with the dual attributes of the citizen’s personal information,but also consistent with the legislative purpose of the crime of violating the citizen’s personal information.In order to balance the conflict between personal information interest and national interest,information freedom and information utilization,the principle of proportionality plays an irreplaceable role in balancing and coordinating the tense conflict between public power and private right.The three sub-principles under the principle of proportionality correspond to and coordinate with the basic principles of criminal law,so the introduction of the principle of proportionality in this crime can alleviate the conflict between public and private legal interests.There are some defects in the two mainstream theories about the legal interest of this crime.Comparatively speaking,the theory of combining public and private legal interests is beneficial to better delimit the boundary of civil punishment of this crime.The theory of combination of public and private legal interests is a dual theory of combination of legal interests with the content of protecting super personal legal interests and personal legal interests.This theory not only harmonizes with the dual attributes of citizen’s personal information,conforms to the legislative purpose of the crime of infringing citizen’s personal information,but also conforms to the scope of the criminal law of the crime.When there are inevitable conflicts between the interests of personal information and the interests of the state,the freedom of information and the use of information,the principle of proportionality plays an irreplaceable role in balancing and coordinating the tense relationship between public power and private rights.The three sub-principles under the principle of proportionality correspond to and coordinate with the basic principles of criminal law.The introduction of the principle of proportionality in this crime can alleviate the conflict between public and private legal interests.The application of the regulation consent rule in the crime of infringing citizens’ personal information is to better protect the public and private legal interests.It can be divided into four categories according to the type of information.Sensitive information and information stipulated by laws and administrative regulations need informed consent or individual or written consent from the information subject,which reflects that legislators focus on protecting private legal interests.The general information can be circulated and used within a reasonable range after the general consent of the information subject to ensure the free circulation and trading of information.In defining the scope of citizens’ personal information,for example,judging whether the registered information made public by enterprises belongs to the criminal object of the crime,according to the combination of public and private legal interests,whether the doer infringes the private legal interests with the information rights and interests of legal representatives or the public legal interests with the maintenance of social order as the content;In the expansion of the illegal use of citizens’ personal information behavior,take the combination of public and private legal interests to judge the doer using information behavior is legal or illegal;Finally,in terms of clarifying the incrimination standard of "serious circumstances" and determining whether "other serious circumstances" are met,different judgment standards should be adopted comprehensively according to the different circumstances of the case,such as the way of obtaining information and the degree of infringement on public and private legal interests.