On 28th, 2002, the Seventh Session of the Tenth National Committee voted to amend Articles 7 and 253 of the Criminal Law as the specific provisions of Article 253:
Staff of state organs or financial, telecommunications, transportation, education, medical and other units who, in violation of government regulations, perform their duties or provide services, obtain citizen information, sell it or fail to provide it, 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 fails to obtain the above information, if the circumstances are serious, shall be punished in accordance with the provisions of the preceding paragraph.
If a unit commits the crimes mentioned in the preceding two paragraphs, it shall be fined, and the person in charge who is directly responsible for it shall be punished in accordance with the provisions of the preceding two paragraphs.
Those who understand the meaning of the above clauses agree that the second paragraph of Article 1 stipulates that the crime of selling or not providing information does not belong to the crime of obtaining information, and the sentencing in the third paragraph is included in the scope of this crime. The crime of selling or not providing information refers to that a specific subject (that is, the staff of government agencies or financial, telecommunications, transportation, education, medical and other units) knowingly sells or does not provide citizens' information, thus causing harm to citizens' information security, or allowing such harm to lead to subjective domination, which violates family law. Rules or regulations on citizen information should be implemented. When a unit performs its duties or provides services, it obtains citizens' information or fails to provide it to citizens, resulting in information flowing abroad, causing serious bodily injury and heavy property losses. The crime of not obtaining information refers to the crime that the general subject knows that he has stolen or failed to obtain citizen information, which harms the security of citizen information, hopes or lets the harm lead to subjective domination, secretly steals or fails to obtain citizen information, which causes information to flow abroad, causing serious harm to the body and heavy losses to property.
From the perspective of normative punishment, understanding the literal meaning of an article is not exploring the literal meaning. Re-understanding the article should be interpreted from the perspective of combining the reality of our company. The author believes that there is still room for improvement in understanding.
Reflections on the necessity of stipulating special subject in this crime
With regard to Article 7 of the Criminal Law Amendment (VII), the author understands the application of relevant contents and recognizes the two crimes stipulated in the first two paragraphs of this article: the crime of selling or not providing information in paragraph 1 stipulates its subject and special subject; Paragraph 2: Regarding the crime of not obtaining information, it is stipulated that the subject infringes the information line area. The significance of special subjects and general subjects mainly has the following reasons:
() Analysis of the benefits of legislative protection
The value of the interests protected by the crime specified in the crime category has caused the danger of infringement or infringement. My criminal law is divided into ten chapters. The situation of infringement of interests has been increased, and the crime of infringement of citizens' information has been included in the criminal law. Chapter IV Crimes against Citizens' Rights and Democratic Rights Article 253 clearly stipulates that the essence of crimes against citizens' information is the same as that of the subject of protection. Therefore, the author believes that the nuclear content in this article should be investigated for criminal responsibility for infringing citizens' information, and whether it has special status or not will affect the determination of the nature of the crime. In other words, the implementation of special subject leads to the difference between infringement and benefit, or the difference between sentencing and subject. Otherwise, you have to practice.
According to the above reasons, combined with the content of article 253, the author thinks that special subject should be understood in article 1.
Article 253 stipulates that the punishment for the crime of infringing citizens' information leads to the infringement of citizens' rights. The subject of crime is the same as the subject of crime that must be carried out by a special subject. The case stipulates that the subject of embezzlement crime is a special subject of embezzlement crime. The special status of family workers is directly related to the violation of their interests. Therefore, the crime of embezzlement can be composed of special subjects. Article 253 stipulates that the subject of the crime of infringing citizens' information is the same as property.
Secondly, according to the practice of our company, the crime of infringing citizens' information is limited to the subjects listed in the article, including real estate companies, hotels, advanced institutions and even citizens (consultants, physiotherapists, physiotherapists, etc.). ), except the staff of financial institutions or financial, telecommunications, transportation, education, medical and other units. The author believes that all units that perform their duties or services can obtain citizen information and sell it. Failure to provide citizens' information violates citizens' rights. The enumerated provisions of this article for the staff of writers' organs or financial, telecommunications, transportation, education, medical and other units seem to be more suitable for the restriction of conviction of special subjects.
To sum up, the author believes that article 7 of this case should be understood by the subject of crime, and listing the subjects to make it clear is conducive to understanding the legal provisions and the actual operation of the department.
It is determined that the staff of family organs or financial, telecommunications, transportation, education, medical and other units mentioned in this article should take the crime of non-detention as an example and be given a heavier punishment. Setting heavier punishment clauses involves frequent revisions. This paper holds that penalty interpretation (including legislative interpretation, departmental interpretation and rational interpretation) can hit the criminal target and it is necessary to make amendments.
(2) Analysis of article content.
Article 253 stipulates that if the second paragraph of Article 1 stipulates that the subject of a crime understands the subject as a special subject alone, the two paragraphs mean that: a special subject (government agency or staff of financial, telecommunications, transportation, education, medical and other units) obtains information to sell or not provide according to his authority or service, and if the circumstances are serious, it constitutes a crime; The problem of the subject stealing or not obtaining information is serious, which constitutes a crime;
1. The general topic is the qualitative problem of Article 253 1.
The general subject conforms to the provisions of Article 253 1, and it is a crime for the general subject to jointly hold information for profit or not to provide information.
According to the provisions of the criminal law amendment, the subject of the crime of selling or not providing information or asking the staff of financial, telecommunications, transportation, education, medical and other units to understand the problems with special subjects: in addition to the subjects listed in Article, the staff of this unit must steal or not obtain information, even if they deliberately sell or not provide citizen information to the bank, they are convicted of infringing citizen information. Combined with the above favorable analysis, it is necessary to sell the rights protected by this crime. Failure to provide information infringes on citizens' information, and its severity has violated the interests of banks. No, paragraph 1 stipulates that some subjects do not have to touch. For example, commercial offices and real estate companies can sell information for profit, or they can not provide information to banks. Paragraph 1 of Article 253 stipulates whether the staff of government agencies or financial, telecommunications, transportation, education, medical and other units should know whether they have not listed all kinds of units that can obtain citizen information during their tenure or service, including their commercial offices and offices.
Foreign citizens can obtain the information of their own citizens through this program. Medical clinics and physical clinics can save patient information. If Article 253 (1) adopts the enumeration mode, which is equivalent to a special subject, the Ministry of Justice will be convicted.
People who have the ability to question: if this crime is understood in this way, the subject makes the criminal law scope of criminal law violate the modesty of punishment. The author thinks that the remaining worry is that the subject seems to expand the criminal circle and crack down on it. In fact, the criminal circle and the amount of punishment are increasing year by year. From the substantive point of view, the control procedure stipulated in Article 13 of General Principles of Criminal Procedure is slightly more dependent on the prosecution system. This kind of behavior excludes punishment, and implements universal punishment and modesty.
It denies the necessity of expanding the criminal circle to a certain extent according to the understanding of article 253 1: only comprehensive provisions can ensure the GAI nature of the provisions on the crime of infringing information; On the other hand, it can reflect the degree of self-governance. At present, I actually control the behavior of infringing citizens' information. Compared with the above, the State Administration of Radio, Film and Television prohibits speculation scandals, scandals and misdeeds, and the Ministry of Public Security has joined hands to crack down on SMS violations. The author believes that administrative discretion should be given and brought into the procedural regulation of the company within the criminal framework.
Based on Article 253 1, if the subject wants to jointly hold information for profit or fails to provide it, it should also constitute this crime.
2. Paragraph1lists the understanding of the subject.
In other words, except for government agencies or financial, telecommunications, transportation, education, medical and other units, whether the information obtained by the staff of their units is sold or not is provided to real estate companies, advanced institutes, hotel network companies and other units according to the previous discussion. My conclusion should be consistent with the fact that all or all units can obtain citizen information according to their functions and powers, and explain the main reasons why Article 235 should be like this according to the previous discussion:
(1) Some units can completely meet the objective aspects of this crime. The objective aspects of this paper are summarized as follows: What is the combination of acquisition and non-provision? The author understands that the subject must show his identity card, and register in strict accordance with the authority and relevant regulations, and in accordance with the requirements of undertaking or voluntarily providing public security. Or provide information such as membership examination and registration. Take citizen information as an example. What is it? The author understands that the provision is not to sell at a high price for commercial purposes, nor to provide citizen information in violation of family rules. Real estate development companies sell merchant information to real estate intermediaries.
(2) In addition to the staff of government agencies or financial, telecommunications, transportation, education, medical and other units, the staff of real estate companies, commercial offices and other units in our company can commit acts of infringing citizens' information, and the degree of harm can be more serious. The meanings listed in Article 235 1 indicate that the subject of this crime is extensive, and a reasonable inference is made: whether the subject of the crime of infringing on citizens' information can obtain citizens' information according to his authority or service process can be the subject of this crime, otherwise it can be the subject of this crime.
(3) Consideration of sentencing setting.
1 and article 235, paragraph 2 of the criminal law set the same fixed penalty. The author thinks that the main difference between these two paragraphs is the same as that between the aforementioned 1 paragraph and the second paragraph. The subject crime of the same trade is meaningless. The crime in the same trade is summarized by the selective crime mode (that is, the crime of smuggling, selling, transporting and manufacturing drugs is similar to the criminal law). It is said that the two separate interpretations of this article are in line with the principle of the establishment of crime. Based on the author's opinion, the crime identified in this paper is based on selective crime.
Based on the above discussion, the author thinks that the subject of article 235 should be understood. It is enough to adopt the selective crime mode to identify the crime of selling, not providing or stealing citizens' information.
Second, the information definition of this crime
At present, the definition of information in the surgical field is in a state of confusion, and there are different standards for terms such as privacy, data and data information. The author intends to discuss the information content from both macro and micro aspects.
() the concept of macro information
The concept of macro information is broad. The definition of information is divorced from the understanding and analysis of related concepts such as private information. I think information refers to information that can be identified by name, address, date, ID number, contact information, fingerprint, marriage, calendar, occupation, medical record, financial status and so on. Alone or in combination with its information.
(B) the concept of micro-information
I think the concept of micro-information should hold a standard: the protection of macro-concept is influenced by the information category of element group, and some elements of micro-information are summarized according to some elements, and the meaning of citizen information in Article 235 of information concept punishment is summarized.
Macro information concept group information elements need to be sufficient under the same circumstances. For example, notarized documents such as name, gender, period, nationality, education level, ID number, home address and electricity are basically consistent with the real estate transaction contract: information elements such as name, ID number and marital status (especially the proof of spouse's knowledge is required for loan purchase): name, gender, marital status, sensitive history and home address are subject to peer performance.
In-depth understanding of the concept of macro information discovery: knowing that it is the identification of information elements such as names, addresses or dates, selling, stealing or not obtaining information elements constitutes information infringement; Information elements need to be combined to identify information. Selling, stealing or not obtaining some information elements can constitute information infringement. Look at the concept of information in a specific case and change it into the same case. Although it violates citizens' freedom and security of information, the number of information elements required to be disclosed in the crime of infringing information. Suspected cases of real estate management departments or real estate companies leaking information to real estate intermediaries. The real estate agent needs to obtain the name and contact number of the property owner. Some information elements, such as the location of assets, can accurately identify location information. It is necessary to limit the number of information elements, that is, to set up conditions for suspected real estate management departments or real estate developers to commit crimes against citizens' information. Information elements require property name, contact information, real estate location, ID number, marital status, medical records, etc. In cases involving medical institutions leaking patient information to pregnant women's health care companies or baby products companies, the name, contact information, date, marital status and medical records of pregnant women can be identified.
In other words, the macro concept of information has general and basic characteristics, and the micro concept has group characteristics. Information originally belongs to the same group, which belongs to literary and art circles, business circles and homeowners. The extension definition of information concept is the same as identifying information belonging to the same group. The information elements needed for this research are similar. The higher the public awareness of the same group, the lower the requirements for the information elements of group crime. For example, revealing the age can still constitute that its information infringes on the public property of the star, but it will lead to serious material or mental damage. Although it is the infringement information of the same group, the range of information elements required for serious circumstances is the same as the judgment scale. The basic standards that should be followed are: the threat of the disclosure of information elements to citizens' personal safety is determined by the interests to be protected by this clause, and the micro concept is
Third, carefully understand the situation.
Item 2 of Article 253 1 of the Criminal Law stipulates that only serious circumstances can constitute a crime. The serious practices of our company directly affect the severity of the criminal circle network, and the circumstances are serious enough to reach the standard of profit. On the other hand, the criteria for conviction should strictly conform to the nature of the crime. The severity standard of this crime should focus on the development of interests. The author believes that information infringement is very serious in quantity and quality:
1. The seriousness of the plot, as the name implies, specifically refers to the horizontal investigation of the damage caused by the disclosure of citizens' information, that is, the breadth of infringement, the scope of groups, the situation of profit, and the scale of not having simple speech, holding non-holding information for sale or not providing or stealing a certain amount. If the circumstances are serious, criminal responsibility shall be investigated. On the question of the number of scales, there is no relevant bar for reference. The author puts forward 100 as the starting point of profit amount in combination with relevant criminal law provisions.
2. The seriousness of the circumstances specifically refers to the in-depth investigation of the damage caused by the disclosure of citizens' information, that is, the extent to which entity information is infringed because it is not made public, and the amount of profit from infringing citizens' information reaches the above quantitative standards. For example, a small number of buyers should know the price that buyers should pay to obtain information and infer the severity of infringement. If the situation is correct, it is still realistic to sell relevant information for profit. As for the degree of personal injury combined with intentional injury, the author thinks that considering the standard of minor injury, that is, infringing citizens' information meets the above requirements (100 or making a profit of 5,000 yuan), the direct result of infringing citizens' information for profit should be convicted and punished according to the seriousness of the case.
Four. conclusion
The stipulation of information infringement platform in Criminal Law Amendment (VII) shows that it is of great significance for me to respect citizens' right to protect information. This paper holds that at present, we should respect the regulations and revise the basis of the regulations in order to combat the crime of infringing citizens' information. First of all, Article 253 is interpreted as the subject of crime; We should define the specific crimes of selling, not providing and not obtaining citizen information by providing a selective crime model; Article 1 In the concrete application of information connotation and extension, we should pay attention to whether their group characteristics and body rights have been infringed, and make a concrete case analysis, accurately grasp the seriousness and quantitative standards of the plot, and give full play to the role of criminal punishment in protecting citizens' information.
Thank you for reading.