The above legislative changes show that the state has deeply realized the harm to society caused by infringing citizens' personal information. However, criminal law, as the most severe sanction, must also set the strictest evidence standard for its application, otherwise it will not be conducive to balancing the relationship between combating crime and safeguarding human rights.
The following is the 10 plea of innocence extracted by the author from 20 cases of infringing citizens' personal information, in order to provide some help for lawyers to defend crimes.
First, the exchange of information is zero and does not constitute a crime.
Reference case: Jing Chao ProsecutionNo. 14 [2018]; Yang Qingcheng No.66 [20 19] on public prosecution;
In violation of the relevant provisions of the state, exchange personal information of citizens with others through QQ group or exchange family data with companies in other industries, and use it to call unspecified people to promote lawyer consultation and other related services. According to the criminal science and technology appraisal, the number of information exchanges between the defendant and others is 0.
2. Fang's behavior of saving and sending personal information of his citizens only according to the arrangement of accomplices does not constitute a crime.
Reference case: Ning Jiang Jian Punishment No.39 [2065438+08];
3. There is no evidence to prove that the person who has not been charged intentionally joined a criminal group.
Reference case: Kunjian Criminal No.39 [2018];
The existing evidence cannot prove the fact that Bian Moumou, who has not been prosecuted, subjectively knew that Zhang Moumou and others were engaged in illegal and criminal activities and joined a criminal group. At the same time, the profitability and the amount of information inquired have not been ascertained.
4. There were no buyers who bought citizens' personal information in the case, and relevant data were collected. Transaction information and profitability cannot be verified.
Reference case: no prosecution, no prosecution [20 18] No.41
Because the public security organs identified Fan Mouzheng, Qin Moman, Rising, Lazina Rebecca, Yu and others who bought citizens' information did not show up, and the relevant transfer records and background data of sending documents and information were not obtained, the existing evidence could not confirm whether the defendant Sun Moumou, who was not prosecuted, bought or sold citizens' personal information, the amount of information and the profit, and the fact that Sun Moumou sold citizens' personal information and made a profit from it in the prosecution opinion could not be verified 1.2 million yuan.
5. Only the non-prosecutor confessed, and there is no other evidence to prove that the non-prosecutor sold about 6,543,800 pieces of personal information of citizens; Moreover, the witness testimony in this case only confirmed that the non-prosecutor made a profit of 4,500 yuan, which did not meet the filing criteria.
Reference case: Zheng Hengjian [20 18] 1 15.
Although Xu Moumou, the non-prosecutor, confessed to the fact that he bought and sold citizens' personal information, except for the non-prosecutor's confession, the investigation organ did not provide evidence of the specific natural person and the amount of information that Xu Moumou sold about 65,438+10,000 pieces of citizens' personal information. Although the testimony of witnesses Chen Moumou and Liu Moumou and bank transaction records confirmed that the defendant Xu Moumou bought and sold personal information such as citizen's name and telephone number and made a profit of 4,500 yuan, the fact that the defendant Xu Moumou infringed on citizen's personal information was confirmed, but the content and quantity of personal information bought and sold could not be determined, and the amount of illegal income did not reach the filing standard of 5,000 yuan. Therefore, it is found that Xu Moumou, who does not prosecute, has insufficient evidence of infringing citizens' personal information and does not meet the conditions for prosecution.
6. The fact that the principal offender constitutes a crime is unclear and the evidence is insufficient, and the fact that the accessory offender constitutes a crime is also unclear and the evidence is insufficient.
Reference case: No.2019 of the Public Prosecution Office of Huiyang Procuratorate.
Because Yang and Chen are husband and wife, they run a * * business firm and a * * technology company, and Chen is the legal representative of the * * business firm and the * * technology company. Yang helped Chen Mou sell mobile phone calling cards activated by other people's identity information. Because the facts of Chen Mou's alleged crime of infringing citizens' personal information are unclear and the evidence is insufficient, it cannot be concluded that Chen Mou constitutes the crime of infringing citizens' personal information. Yang Moumou and Chen Moumou were suspected of the same crime, and Yang Moumou played a supporting role, because there was not enough evidence to identify Chen Moumou as a crime of infringing citizens' personal information. Therefore, the facts of Yang's crime of infringing citizens' personal information are unclear and the evidence is insufficient, which does not meet the conditions for prosecution.
7. Whether the citizen's personal information illegally purchased by the non-prosecutor is used for legal business activities is unknown and unknown.
Reference case: Huai Jian Xing Zi [20 18] No.44; Huai Jian Xing Zi [20 18] No.45; Huai Jian Xing Zi [20 18] No.46; Jinxi Procuratorate Public Prosecution No.8 [2018]; No.96 [2065438+09]; Junshan District Court [2019] No.9;
Eight, using someone else's identity card to activate and sell calling cards is unknown, and the illegal income cannot be calculated and there is no evidence to prove it.
Reference case: Huiyang Procuratorate does not prosecute [20 19] No.4; No.93 [20 17], no.
Chen Mou confessed that the number of calling cards activated and sold by other people's ID cards is unclear; Insufficient evidence, Chen Moumou and Yang Moumou subjectively know that others are used for illegal and criminal activities and sell citizens' personal information to others; Chen's illegal income from selling and providing citizens' personal information cannot be calculated and there is no evidence to prove it.
Nine, the lack of electronic data is not enough to prove the exact source and quantity of illegally obtaining or providing citizens' personal information.
Reference case: Hengqi Prosecution and Non-prosecutionNo. 147 [20 18]; Ju 'nan Non-prosecution Public Punishment [20 19]No. 126;
The existing evidence lacks the support of electronic data, which is not enough to prove the exact source and quantity of citizens' personal information obtained or provided illegally, so it is doubtful that it constitutes the crime of illegally infringing citizens' information as stipulated in Article 253-1 of the Criminal Law of People's Republic of China (PRC).
X. The sources of personal information of the citizens involved are unknown.
Reference case: No prosecution for three punishments [2065438+08] No.72.
I Taizhou * * Brand Promotion Co., Ltd., formerly; Second, the staff of the development department obtain it through their own personal channels; Third, Chen bought through the Internet. It has been verified that four enterprises, including Taizhou Metallurgical Machinery Factory, whose RMB 75 1 000 was successfully promoted through which of the above three sources, the file evidence cannot be determined. Secondly, in the retrieval data of Chen's computer hard disk, a file named "Taizhou General Library" was found as a part of purchasing customer data, and the rest was not extracted by the investigation organ. No enterprise-related information of Taizhou Machine Tool Factory, Linhai Chemical Co., Ltd., Wenling Shoes Factory and Taizhou Technology Co., Ltd. was found in the "Taizhou General Database" document. Thirdly, four enterprises, including Taizhou Metallurgical Machinery, set up web pages on the Internet to promote their business, and the enterprise web pages uploaded the contact numbers of enterprise personnel.