| While the Internet has brought us convenience,it has also opened up channels for illegal and criminal acts,and cases of infringement of personal information rights and interests have been frequent in recent years,and some even seriously endanger citizens’ personal and property rights.As the most stringent law,the criminal law itself plays the role of social bottom line guarantee.However,when the "Personal Information Protection Law" and other relevant departmental laws have not yet been promulgated and implemented,the protection of personal information is almost always directly applicable to the criminal law,which will undoubtedly challenge the modesty of the criminal law,and there is often a problem of expanding the scope of application in the judicial practice of the crime of infringing on citizens’ personal information,which is an unavoidable problem in previous legal activities.After the promulgation of relevant preliminary laws such as the Personal Information Protection Law,judges have formed judicial inertia in referring to precedents and are unfamiliar with the application of the new law,which will lead to some debatable judgments.From a legislative point of view,on the one hand,the scope of protection of personal information is provided by vague legal provisions,the relevant judicial interpretations are listed in a non-exhaustive manner,and there is no clear definition scope for the classification of some proprietary information,and there is no clear standard for how to distinguish the adjustment boundary between the preceding law and the criminal law;The criminal law also has imperfections in the objective aspects of this crime: the infringement of personal information under the current legal provisions includes illegal acquisition,illegal provision and illegal sale,and this more general provision has created certain obstacles to the determination of specific judicial application,and at the same time,it is not criminalized to only carry out illegal use,which is a more obvious real threat,so it will lead to some illegal and criminal acts not being duly punished during judicial application,and the rights and interests of personal information urgently need to be protected;On the other hand,the undetermined legal interest of this crime makes the application of the crime of infringing on citizens’ personal information show the characteristics of pocket crime,judicial personnel adjudicate cases with lenient conviction and judgment while being cautious about sentencing,resulting in the expansion of the scope of criminal punishment and the phenomenon of abnormally light punishment,the reduction of illegal costs leads to insufficient deterrence to criminal acts,squeezes the space for pre-regulatory regulations,and it is difficult to protect the legitimate rights and interests of victims.To a certain extent,the use of lenient criminalization is excessive protection of personal information,which will not only block the flow of information,cause information islands and social retrogression,but also damage the authority and credibility of the criminal law,and is not conducive to the correct exercise of the regulation and protection functions of the criminal law.Therefore,in judicial practice,how to protect citizens’ personal information rights and interests as much as possible while ensuring that information can be reasonably circulated and used within the scope prescribed by law,correctly applying the crime of infringing on citizens’ personal information,and promoting social governance and development has become the proper meaning of the construction of the legal system for personal information protection.This paper uses the case study method to analyze the application of the crime of infringing on citizens’ personal information in judicial practice,and uses the literature research method to sort out the application and development of the criminal law crime of infringing on citizens’ personal information,the protection of legal interests,the scope of personal information protection,the means of criminal conduct,and the standard of "serious circumstances",clarify whether special personal information such as the personal information of the deceased falls within the scope of criminal laws and regulations,and clarify the criminalization boundary of this crime by summarizing the application scenarios of exemption reasons such as the "informed consent" principle.Through punishments such as "prohibition of employment",improve the punishment measures for this crime,build a nested protection system between various departments and laws on personal information protection,and explore the balance between personal information protection and circulation. |
