On February 28th, 2009, the Seventh Session of the 11th the National People's Congress Standing Committee (NPCSC) adopted the Criminal Law Amendment (VII). Article 7 of the amendment adds a provision on the crime of infringing citizens' personal information after Article 253 of the Criminal Law as one of Article 253. The specific provisions are as follows:
Whoever provokes the staff of state organs or financial, telecommunications, transportation, education, medical and other units, in violation of state regulations, sells or illegally provides citizens' personal information obtained by their own units in the course of performing their duties or providing services to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined.
Whoever steals or illegally obtains the above information by other means, if the circumstances are serious, shall be punished in accordance with the provisions of the preceding paragraph.
Where a unit commits the crimes mentioned in the preceding two paragraphs, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of each paragraph. land
As for the meaning of the above clauses, some scholars believe that paragraphs 1 and 2 of this article respectively stipulate the constitutive elements and sentencing of the crime of abetting the sale, illegally providing personal information and abetting the illegal acquisition of personal information, while paragraph 3 includes the unit in the scope of this crime. The crime of selling or illegally providing personal information refers to the fact that a specific subject (that is, the staff of state organs or financial, telecommunications, transportation, education, medical and other units) violates the provisions of national laws, regulations or rules on citizens' personal information when he knows that his behavior of selling or illegally providing the citizens' personal information will cause harm to the safety of citizens' personal information, but he hopes or allows this harmful result to happen subjectively. Selling or illegally providing citizens' personal information legally obtained by the unit in the course of performing its duties or providing services to others, causing a large number of citizens' personal information to leak, causing a large number of personal information to flow abroad, causing serious personal injuries to the victims and causing heavy property losses. The crime of illegally obtaining personal information refers to the harmful behavior that the general subject knows that stealing or illegally obtaining citizens' personal information will harm the safety of citizens' personal information, hoping or letting the harmful consequences happen, resulting in a large number of citizens' personal information leaking, a large number of personal information flowing abroad, serious personal injuries to the victims and heavy losses to their property.
From the perspective of standardizing criminal law, the above understanding conforms to the literal meaning of the law. However, this paper is not to re-understand the literal meaning, but to interpret it from the perspective of legal provisions of this crime in combination with judicial practice. The author believes that there is still room for improvement in the above understanding.
First, it is necessary to stipulate the special subject of this crime.
From the academic understanding of the application of Article 7 of the Criminal Law Amendment (VII), it is considered that the first two paragraphs of this article stipulate two crimes: Paragraph 1 is about the crime of selling and illegally providing personal information, and its subject is a special subject; The second paragraph is about the crime of inciting illegal access to personal information, and its subject is the general subject. Whether it is necessary to distinguish between special subjects and general subjects to set up two crimes with the same legal punishment depends on whether the subjects listed in this paper indicate that the crimes involved in this paper can only be composed of special subjects. In my opinion, from the perspective of criminal law theory and judicial practice, it is of little significance to set up sub-clauses to distinguish special subjects from general subjects. The main reasons are as follows:
(A) from the analysis of the legal interests of legislative protection
An act is defined as a crime because it violates the interests and values protected by law, or is in danger of being violated. The division standard of the ten chapters of the specific provisions of China's criminal law is the legal interest of behavior infringement. The amendment added the crime of infringing citizens' personal information and incorporated it into Article 253 of Chapter IV of the Specific Provisions of the Criminal Law, so as to clearly stipulate the crime of infringing citizens' personal rights and democratic rights. It can be seen that the essence of the crime of infringing citizens' personal information is the infringement of citizens' personal rights, and the legal interests protected by it will not be infringed to varying degrees because of different subjects. Therefore, the author believes that the core content to be emphasized in this paper is that the criminal responsibility of citizens' personal rights should be investigated for violations of citizens' personal information. Whether you have a special status or not does not affect the determination of the nature of the crime and the difference in sentencing. In other words, if the actions carried out by special subjects and general subjects will lead to differences in infringement of legal interests or differences in sentencing, then it is necessary to make differences in legislation in judicial practice, otherwise there is no need to make differences.
Based on the above reasons, combined with the contents of Article 253, the author thinks that Article 1 should not be understood as a special subject.
First, the crime of infringing citizens' personal information stipulated in Article 253- 1 punishes the act of infringing citizens' personal rights because of infringing citizens' personal information, and different actors will not lead to different natures. This is completely different from crimes that must be committed by special subjects. For example, the criminal law stipulates that the subject of the crime of corruption is a special subject, because the crime of corruption mainly infringes on the integrity of the post, and the special status of state employees is directly related to the infringement of legal interests. If they don't have this status, it is impossible to infringe on the legal interests of state public officials. Therefore, the crime of corruption can only be composed of special subjects. Article 253- 1 stipulates that the crime of infringing citizens' personal information will not be qualitatively different because of different subjects.
Second, combined with judicial practice, the crime of infringing citizens' personal information is not limited to the subjects listed in this paper. In addition to the staff of state organs or financial, telecommunications, transportation, education, medical and other units, it also includes real estate companies, hotels, senior clubs and other service institutions and even individual citizens (such as psychological counselors, individual doctors, physical therapists, etc.). ) can obtain citizens' personal information and may commit the criminal acts stipulated in this article. Therefore, the author believes that as long as a unit can obtain citizens' personal information in the process of performing its duties or services, it is possible to sell or illegally provide citizens' personal information, which violates citizens' personal rights. From this point of view, it seems more appropriate to understand the provisions of this article about the staff of state organs or financial, telecommunications, transportation, education, medical and other units as enumerative provisions for general subjects, so as to avoid being a restriction on conviction because of special subjects.
To sum up, the author thinks that the subject of crime in Article 7 of the amendment should be understood as the general subject, and the legislation only uses enumeration to express the common subject, so as to facilitate the understanding of the legal provisions and the actual operation of the judicial organs.
If you think that the staff of state organs or financial, telecommunications, transportation, education, medical and other units referred to in the Regulations should be given a heavier punishment, you can also take the crime of illegal detention as a legislative example and set a heavier punishment clause. Of course, if this is the case, it will involve legislative amendments, and frequent legislative amendments are not recognized in this paper. The author believes that when the interpretation of criminal law (including legislative, judicial and academic interpretations) can be consistent with the goal of combating crime, there is no need to amend legislation.
(B) from the content analysis of legal provisions
Judging from the provisions of Article 253- 1, if the criminal subjects stipulated in Article 1 and Article 2 are understood as special subjects and general subjects respectively, the meanings in these two paragraphs are: the special subjects (staff of state organs or financial, telecommunications, transportation, education, medical and other units) sell or illegally provide information or services legally obtained according to their functions and powers to others, and the circumstances are serious. The general subject only steals or illegally obtains information by other means, which constitutes a crime if the circumstances are serious. This will lead to the following problems:
1. The general subject has the behavior qualitative problem of Article 253- 1 1.
How to convict a general subject when he acts in accordance with the provisions of Article 253- 1, paragraph 1, depends on whether the general subject sells legally held information for profit or illegally provides it to others, which constitutes a crime.
According to the provisions of the criminal law amendment, the subject of the crime of selling or illegally providing personal information is the staff of state organs or financial, telecommunications, transportation, education, medical and other units. If this provision is understood as a special subject, it will bring the following problems: First, as long as the means of obtaining information is legal, it does not belong to stealing or otherwise illegally obtaining it, even if the staff of other units deliberately sell citizens' personal information for profit or illegally provide it to others. However, combined with the analysis of legal interests mentioned above, it can be seen that the legal interests protected by legislation in this crime are citizens' personal rights, and any act that infringes on citizens' personal information, such as selling or illegally providing, has already violated the legal interests. At this time, the extent to which the behavior infringes the legal interests is not necessarily related to whether the subject is the subject specified in 1. For example, commercial clubs and real estate companies may sell personal information for profit or illegally provide it to others. Secondly, whether to tease the places of the staff of state organs or the staff of financial, telecommunications, transportation, education, medical and other units stipulated in Article 253, paragraph 1, should be understood as other units that can obtain citizens' personal information in the course of performing their duties or services. If other units such as business clubs and real estate companies are included, then we will understand paragraph 1 as a crime that can only be committed by special subjects.
In addition, individual citizens may also legally obtain other citizens' information during the service process, such as psychological clinics and individual clinics, which may all have patients' personal information. If the enumerated legislative model adopted in Article 253 1 is equivalent to that this is a special subject, the law cannot convict some people.
Of course, some scholars may question: if this crime is understood as a general subject, will it make the scope of criminal law too wide and the criminal circle too large, which will violate the modesty of criminal law? However, the author thinks that this kind of worry is unnecessary, because when 1 in Article 253 is understood as a general subject, it seems to expand the criminal circle, thus increasing the scope of attack. In fact, the expansion of the criminal circle and the amount of punishment are not increasing year by year, because from the perspective of substantive law, it can be controlled by the proviso of Article 13 of the General Principles of Criminal Law. From the perspective of procedural law, it can be excluded from criminal punishment by relying on the non-prosecution system, which will not be too extensive and will not violate the modesty of criminal law.
Undeniably, according to the author's point of view, understanding 1 in Article 253- 1 as a general subject will expand the criminal circle to a certain extent, but this expansion is necessary: on the one hand, only in this way can we ensure the GAI and scientific nature of the provisions on the crime of infringing personal information in criminal law legislation; On the other hand, it can also reflect the degree of the rule of law in China, because at present, China has actually strengthened the control over the infringement of citizens' personal information, but it is more regulated by administrative means, such as the ban on celebrity scandals, scandals and misdeeds mentioned above by the State Administration of Radio, Film and Television, and the joint action of the Ministry of Public Security to crack down on illegal short messages. The author thinks that instead of giving administrative means too much discretion, it is better to bring it into the framework of criminal law and regulate it through judicial procedures.
To sum up, the subject of 1 in Article 253- 1 is a general subject. As long as the legally held information is sold for profit or illegally provided to others, if the circumstances are serious, it should also constitute this crime.
2. Understanding of the topics listed in clause 1
In other words, in addition to state organs or financial, telecommunications, transportation, education, medical and other units, are there any other employees who sell or illegally provide information legally obtained according to their functions and powers to others, such as real estate companies, high-end clubs, hotels, Internet companies, etc. From the previous discussion, we can draw the conclusion that any unit or individual can constitute the subject of this crime as long as it can obtain citizens' personal information according to its authority or service. Combined with the previous discussion, this paper further explains the reason why one of the 235th articles should be a general subject:
(1) These units can carry out behaviors that completely conform to the objective aspects of this crime. The objective aspect of the behavior stipulated in article 1 of this article can be summarized as "illegal acquisition+illegal provision". What is legal acquisition depends on the author's understanding, that is, the subject obtains it ex officio, conforms to the relevant regulations or is provided voluntarily by the counterpart. If it is necessary for public security, it is stipulated that you must show your identity card and register strictly when staying in the hotel; Another example is the personal information provided by students or social workers for exams, registration, etc. The personal information of citizens obtained under the above circumstances is legal. What is illegal provision depends on the author's understanding that it is to sell or provide citizens' personal information in violation of state regulations for commercial purposes. For example, it is a typical illegal clause for a real estate development company to sell merchant information to a housing agency.
(2) In judicial practice, in addition to the staff of state organs or financial, telecommunications, transportation, education, medical and other units, the harm of employees of real estate companies, business clubs and other units infringing on citizens' personal information may be quite serious. To sum up, the meaning of teasing listed in Article 235- 1 paragraph 1 shows the universality of the subject of this crime, from which a reasonable inference can be made: the criterion for judging the subject of the crime of infringing citizens' personal information is whether they can obtain citizens' personal information ex officio or in the course of service, so they can become the subject of this crime, otherwise they cannot become the subject of this crime.
(3) Consider sentencing settings.
1 has the same statutory penalty as Article 235, paragraph 2, of the Criminal Law. The author thinks that the difference between these two paragraphs is mainly the difference in behavior. As mentioned earlier, in the case that it is meaningless to distinguish between special subjects and general subjects in paragraphs 1 and 2, different crimes caused by different behavior patterns can be summarized by selective crime patterns (that is, behavior selective crimes, smuggling, trafficking and other similar crimes in the criminal code). Based on this, the author believes that it is more reasonable to adopt the selective crime (behavior choice) pattern when determining the charges in this article, that is, to decide it.
Based on the above discussion, the author believes that the subject of Article 235 of the Criminal Law should be understood as a general subject, and the selective crime mode should be considered as the crime of obtaining, selling, illegally providing or stealing citizens' personal information.
Second, the definition of obtaining personal information in this crime
At present, the definition of personal information is in a state of confusion in both academic and practical circles, and there are few terms such as personal privacy, personal data, personal data and personal information. There are also differences in classification standards, and the author intends to discuss the content of personal information from both macro and micro aspects.
(A) the macro concept of personal information
The macro concept of personal information is personal information discussed in a general sense, because the definition of personal information is inseparable from the understanding of personal privacy, personal data and other related concepts. Combined with the analysis of related concepts, we think that personal information refers to name, address, date of birth, ID number, contact information, fingerprint, marriage, education, occupation, medical record, financial status and so on. A natural person's, I don't want to be specific.
(B) the micro concept of personal information
Here, we believe that the micro concept of personal information should be grasped as follows: in the category of personal information protected by macro concept, those elements that can affect personal rights are the micro elements of personal information, and the concept of personal information summarized according to these elements is the meaning of citizens' personal information in Article 235 of the Criminal Law.
In the macro concept of personal information, there are many elements that constitute personal information, but in different occasions, only a part of them is enough. For example, in court legal documents, personal information elements include: name, gender, date of birth, nationality, education level, ID number, home address, telephone number, etc. The requirements in notarial documents are basically the same as above. In the real estate transaction contract, the elements of personal information are: name, ID number and marital status (especially when buying a house, proof of spouse's knowledge is required). Telephone number, etc. In medical records, personal information elements include: name, gender, marital status, allergy history, home address, etc. Based on this, the concept of personal information should not be a macro concept, but a micro concept, and the standard of personal information elements in the micro concept should be: whether these elements have enough conditions to infringe citizens' personal safety in such cases.
If we deeply understand the macro concept of personal information, we will find that when one of the information elements such as name, address or date of birth can be known, selling, stealing or illegally obtaining this information element constitutes infringement of personal information; However, when it is necessary to combine multiple information elements to identify the information itself, selling, stealing or illegally obtaining these information elements at the same time constitutes an infringement on personal information. It can be seen that the concept of personal information in specific cases is not static. Under different circumstances, although it is an infringement on the freedom and security of citizens' personal information, the amount of disclosure of personal information elements is different. For example, in a case where a real estate management department or a real estate company is suspected of leaking personal information to a housing agency, the housing agency can accurately identify and locate the information itself only by obtaining a few information elements, such as the name, contact information and location of the real estate owner who has the right to dispose of the real estate in substance. Only in view of these limited information elements can the act of infringing personal information be established. Therefore, in the crime of infringing citizens' personal information by real estate management departments or real estate developers, the personal information elements that meet the conviction conditions only need the name of the property owner, contact information and the location of the real estate. Others, such as the date of birth, ID number, marital status and medical records of the property owner, are not asked. However, in cases involving medical institutions leaking information of delivery patients to pregnant women's health care companies or baby products companies, pregnant women's name, contact information, date of birth, marital status, medical records and baby's fertility status become the information elements that can identify the information person. Therefore, the understanding of personal information should be based on macro concepts and grasp the differences of micro concepts in specific cases.
In other words, the macro concept of personal information has general and basic characteristics, while the micro concept has group characteristics. When information people belong to different groups, such as literary and art circles, business circles, homeowners, members and other different groups, the definition of personal information concept extension is different, but the information elements needed to identify information people belonging to the same group are similar. Compared with different groups, the higher the public awareness, the lower the amount of information elements needed for crime. For example, for ordinary people, just revealing their age may not constitute an infringement of their personal information, but it may bring serious material or mental harm to public figures like stars. Although there are different standards for judging the range of personal information elements required by different groups to seriously infringe on personal information, there is a basic standard that should be followed: the disclosure of information elements poses a threat to the personal safety of citizens. This is determined by the legal interests to be protected by this clause. To sum up, the microscopic concept of personal information should not be grasped across the board, and standards should be implemented and specific case studies should be made.
Third, the understanding of the seriousness of the plot.
Article 1 and Article 253- 1 paragraph 2 of the Criminal Law stipulate that only serious circumstances constitute a crime, and the criterion for judging serious circumstances is a major issue in judicial practice, which directly affects the size of the criminal circle and the tightness of the law net. What happened, and the circumstances were serious? Is it based on the profit? I don't think so. On the one hand, not all crimes against personal information are for profit, and some crimes simply do not have the amount of profit; On the other hand, the standard of judging guilt should strictly follow the nature of the crime, and the legal interest violated by this crime is the safety of citizens' personal rights, so the standard of grasping serious circumstances should also focus on legal interest. The author thinks that we can consider the seriousness of infringing personal information from two aspects: the funny place and the funny texture:
1. As the name implies, the seriousness of the case refers to the horizontal investigation of the damage caused by the act of revealing citizens' personal information, that is, the breadth of the infringement, the size of the crowd, and the profit. In short, as long as personal information is sold, illegally provided or stolen by other means, whether it is legally held or illegally held, it is regarded as serious and the offender shall be investigated for criminal responsibility. The size of this number has no relevant horizontal law. Regarding the amount of profit, combined with the provisions of the relevant crimes in the Criminal Code, the author believes that the starting point of this crime is illegal profit of 5,000 yuan.
2. The manifestation of serious teasing refers to the in-depth investigation of the damage caused by the act of leaking citizens' personal information, that is, the degree of damage caused to individuals after the information is illegally leaked. This is because the infringement of citizens' personal information, although the spread and profit of the infringement is not large, can not reach the standard of the above amount, resulting in serious violations of the personal rights of the victims. For example, judging from the amount of money paid by the buyer for the personal information of several people or even one person, the seller should know that the infringement income of the buyer to the victim after obtaining the information should be greater than the consideration paid. It can also infer the severity of the other party's harmful behavior after obtaining the information. If the perpetrator still sells relevant information for profit in this case and actually causes personal injury to the person whose information was leaked, it should constitute a crime. As for the degree of personal injury, combined with the degree of injury in the crime of intentional injury, the author thinks that minor injury can be considered as the standard, that is, when the personal information of citizens does not meet the above requirements (100 or 5,000 yuan), if the profit-making behavior of infringing citizens' personal information directly leads to personal injury of the victim, it should be considered as serious and convicted and punished.
Four. conclusion
The introduction of the crime of infringing personal information stipulated in the seventh amendment to the Criminal Law shows that China's efforts in respecting human rights and protecting citizens' personal information are of great significance. This paper holds that at present, we should interpret the provisions on the basis of respecting them and not amending them, which is in line with the legislative purpose of cracking down on crimes against citizens' personal information: first, the subject of crime in Article 253 is the general subject; Secondly, this article should be defined as a selective crime mode to determine the specific charges, that is, the crime of teasing to sell, illegally providing and illegally obtaining citizens' personal information; Finally, in the specific application of the law, the understanding of the connotation and extension of personal information should pay attention to its group characteristics, analyze specific cases based on whether personal rights have been violated, and accurately grasp the standard of teasing texture and teasing place with serious circumstances, so as to give full play to the due role of criminal law in protecting citizens' personal information.
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