| The crime of infringing upon citizens’ personal information is a typical crime under circumstances.The serious circumstances in the "Interpretation of Several Issues concerning the Application of Law in Handling Criminal Cases of infringing upon Citizens’ Personal Information" is taken as the crime standard,and it is divided into multiple elements according to the contents of the legal provisions,so as to guide the development of judicial practice by examining whether the behavior meets the corresponding provisions.Specifically,it includes third party involvement,subjective elements,type and quantity of information,illegal income,preventive elements and special identity provisions.However,the provisions of the Judicial Interpretation on some elements are still general or the scope is too rigid,which makes the legal provisions and judicial practice lack a bridge built by reasonable interpretation,resulting in the imbalance of individual cases and the omission of protection in criminal law and other realistic difficulties,which aggravate the difficulty of judicial identification of this crime.To be specific,the serious provisions have the following problems: the classification of information types is not delayed,the counting method of information is rough,the direction of whereabouts and track information is fuzzy,the rules of punishment between charges are unclear,the rules of use of special identity are unclear,the setting of special prevention provisions is still controversial,and the calculation method of illegal income is confused.In addition,by selecting and studying part of the second-instance cases about this crime in recent three years,it can be found that in practice,the crime is mostly identified by the evaluation method of elements aggregation.Among them,the most frequently used elements are information type and quantity,illegal income and special identity.At the legislative level,various elements used to represent the degree of infringement of legal interests present a state of mixed provisions.The simple listing of provisions does not establish a perfect use model for this crime,which easily leads to the arbitrary use of circumstances in cases.The above problems have become the shackles that hinder the development of the criminal protection system of personal information and need to be adjusted accordingly.Therefore,it is an effective means to solve the above problems by systematically sorting out each element,taking the unity of opposition between the positive criminal legislation view and the negative criminal justice view as the research standpoint on the basis of the clear position of the legislators,looking at the problem from the perspective of the unity of legal order,appropriately modifying and perfecting the provisions of each element and constructing the use model.Overseas provisions on the protection of personal information can provide some ideas for the construction of our information protection system,the standard of information classification protection and the benefit connotation of information protection law,and contribute to the development and improvement of the standard of serious plot crime in our Criminal Law.On this basis,guided by the "personal legal interests,property legal interests and information related legal interests" protected by this crime,the following suggestions are put forward in view of the problems exposed in practice: Reasonable classification of information types and protection intensity,determine the calculation rules of quantity,clarify the use relationship between the unit of measurement "article" and "group",accurately define the connotation of the whereabouts and track information,standardize the punishment mechanism of related crimes,refine the treatment standard and use scenario of identity regulations,clarify the use stage of prevention regulations,and clarify the design significance and calculation method of illegal income system.Finally,through research and analysis,on the premise of improving the provisions of plot elements,a two-step identification method is constructed by using the composite theory of class constituent requirements,that is,first judge whether the case is in line with the information quantity and type elements,and then take the remaining elements as a three-dimensional use model to make up for the comprehensive judgment of the consideration factors of illegal behavior,so as to provide a guarantee for the implementation of the provisions on the criminal protection of citizens’ personal information. |
