【Copyright Notice】The copyright belongs to the original author, only for learning and reference, it is forbidden to use it for commercial purposes, if the source is marked incorrectly or violates your rights and interests, please inform us, we will delete it immediately. Source: People's Justice, Issue 26, 2023. Author: Liu Juanjuan, Shanghai Pudong New Area People's Court.
Summary of the trial
The scope of business of the legal consulting company involved in the case does not include law firm business, and the defendant's introduction and retention of a designated lawyer to engage in criminal representation business clearly exceeds the scope of lawful business and cannot be found to be lawful business activities, and the standard for the seriousness of the crime of violating citizens' personal information shall be applied.
case
Public prosecution organ: Shanghai Pudong New Area People's Procuratorate.
Defendant: Liu Hui.
The Pudong New Area People's Court ascertained through trial that in May 2019, Liu Hui got acquainted with Jin, the captain of the police team of a police station (handled in a separate case). In September 2020, Liu Hui registered and established Shanghai Shenglu Legal Consulting Co., Ltd. (hereinafter referred to as Shenglu Consulting Company) as the legal representative and actual operator. Liu Hui asked Jin to provide information on the suspects detained in the criminal case and their families, and Jin then used his key to inquire about the criminal cases under investigation by other case-handling units in the jurisdiction, and handed over more than 100 pieces of information, such as the cause of the case, a brief case situation, the names and contact information of the suspect and his family, and the name and contact information of the victim and his family, to Liu Hui by voice or handwritten note, and Liu Hui successively gave Jin 11,000 yuan and 6 soft Chinese cigarettes. After obtaining the information, Liu Hui contacted the family by phone to gain trust and negotiate the business of entrusting a lawyer, and then signed a legal consultation contract (agreement) with the family in the name of Shenglu Consulting Company and collected fees. Liu Hui handed over the case to practicing lawyers Yao Moumou and Liu Moumou, who met at the door of the detention center, and paid commissions to the lawyers through WeChat. After investigation, from February to July 2021, Liu Hui obtained citizens' personal information through Jin to facilitate a total of 9 lawyer representation businesses, with illegal gains totaling 201,500 yuan. After the case, Liu Hui took the initiative to surrender to the public security organs and truthfully confessed the facts of the crime, and his family helped him withdraw all his illegal gains.
trial
After trial, the Pudong New District Court held that Liu Hui illegally obtained citizens' personal information by other means, and the circumstances were particularly serious, and his behavior constituted the crime of infringing on citizens' personal information. Liu Hui voluntarily pleaded guilty and accepted punishment, withdrew all illegal gains, and had his punishment commuted in accordance with law. The Pudong New District Court sentenced Liu Hui to one year and 10 months in prison and a fine of 5,000 yuan for infringing on citizens' personal information. After the first-instance verdict was announced, the defendant Liu Hui was not satisfied and appealed. The Shanghai No. 1 Intermediate People's Court held that the facts found in the original judgment were clear, the evidence was credible and sufficient, the conviction was accurate, the sentencing was appropriate, and the trial procedures were lawful, so it ruled to reject the appeal and uphold the original judgment.
Analysis
There are two issues in dispute in this case: first, whether the contact information of the suspects and their families who have been criminally detained is citizens' personal information, and second, whether Shenglu Consulting's act of acting as an intermediary to recommend lawyers, sign legal consultation contracts, and charge fees is a legitimate business activity.
1. Information such as the contact information of suspects in criminal detention and their families is citizens' personal information
In 2012, the Standing Committee of the National People's Congress (NPC) issued the Decision on Strengthening the Protection of Online Information, which for the first time put forward the characteristics of the identifiability and privacy of citizens' personal information, and in 2013, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security issued the Notice on Punishing Criminal Activities Infringing on Citizens' Personal Information in accordance with the LawThe 2016 Cybersecurity Law clarifies that identifiability is the only legal standard, including direct and indirect identification, and the 2017 Interpretation of the Supreme Court and the Supreme Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringement of Citizens' Personal Information (hereinafter referred to as the "Interpretation") stipulates the principles of scope expansion, information classification and classification protection, emphasizing identifiability + safety of persons and property. It can be seen that the legal provisions on citizens' personal information are gradually clarified and improved, and the form emphasizes the identifiability of identity, that is, the individual characteristics of citizens can be identified and matched with specific individual citizens, which is the personal attribute of citizens' personal information;
As mentioned above, the Interpretation divides personal information into three levels according to its importance and sensitivity, and sets the threshold for criminalization from low to high. The first category is whereabouts and trajectory information, communication content, credit information, and property information, and these four types of information are directly related to personal and property security, and are highly sensitive information, and the word "etc." is not expressed in the Interpretation, so it cannot be expanded through extra-equivalent interpretations when applied in the judiciary; Transaction information, etc., is less important than the first category, and in judicial practice, additional interpretations may be made in light of the specific circumstances to ensure that it is equivalent and homogeneous in importance with the four types of information listed, and the third category, other citizens' personal information. How to understand the word "sensitive" here? In accordance with the requirements of the uniformity of legal order, the provisions of relevant administrative regulations should be referred to. The 2021 Personal Information Protection Law clearly sets out the criteria for identifying sensitive information: first, it is likely to lead to infringement of personal dignity, and second, personal and property safety is endangered. At the same time, it stipulates that the processing of sensitive information shall obtain the individual's separate consent. In the 2013 Guidelines for the Protection of Personal Information in Information Security Technology Public and Commercial Service Information Systems issued by the Ministry of Industry and Information Technology, and in the 2020 Personal Information Security Specifications for Information Security Technology issued by the State Administration for Market Regulation and the Standardization Administration of the People's Republic of China, different information collection rules are also set up to distinguish between general personal information and sensitive information, and the explicit consent of rights holders is required for the collection of sensitive information. It can be seen that the difference between general information and sensitive information lies in the degree of damage risk that may be incurred, and information that may suffer a higher risk of damage to personal and property safety is defined as sensitive information, and vice versa is defined as general information. The sensitivity of the information is directly proportional to the importance, and the higher the sensitivity, the more important it is, and the greater the risk of damage. The Interpretation stipulates that only 50 pieces of information in the first category with the highest sensitivity will be criminalized, 500 pieces of information in the second category with average sensitivity will be criminalized, and 5,000 pieces of information in the most common category III will be criminalized.
In this case, the information obtained by Liu Hui from Jin has the following characteristics: First, it is formally identifiable, which is a brief description of the case of the criminal detention case, whether it has been reported for approval of arrest, the name of the suspect, the name and contact number of the family, and the name and contact number of the victim or family member. Each set of information includes a number of specific information, such as the name of the suspect + the name of the family + the contact number or the name of the victim + the name of the family + the contact number, etc., which has a one-to-one correspondence with the suspect and his family, the victim and his family, and can eliminate ambiguous situations such as the same name and surname that are easy to confuse identities, and has a clear orientation and personal labeling, and conforms to the formal characteristics of direct identification; According to the social value criterion of information, it is possible to distinguish between positive information, neutral information and negative information. Positive information refers to information that reflects an individual's positive social value, such as receiving honorary titles and awards, job promotions or rank promotions, normal further education and employment, etc.; neutral information refers to information that does not reflect value judgment and objectively exists, such as ID card, home address, work unit, family relationship, etc.; negative information refers to information that reflects an individual's negative social value, such as being complained and prosecuted, being included in the enforcement blacklist, being administratively detained or criminally punished, being sexually assaulted and defrauded, etc. Value judgments should be made using the standards of ordinary actors, in which negative information is the information that individuals are least willing to be known by the outside world, are the most private, and are even ashamed to disclose to others and try their best to cover up and conceal information. The information involved in this case, whether it is directed at the suspect or the victim, especially the victim of sexual assault and fraud cases, often does not mention the victim information for fear of being known and for fear of being ridiculed. The non-disclosure of the information involved in the case is obvious; on the one hand, Jin X is the captain of the police team of the police station, has a certain position, and he is equipped with a key to log in to the public security intranet case comprehensive information system to inquire about the investigation and handling of cases by other case-handling units in the jurisdiction, and if it is an ordinary people's police, he can only inquire about the investigation and handling of cases by his own case-handling unit; on the other hand, after Jin inquires the name of the suspect, he also needs to log in to the actual population information system, which only public security officers and police officers have authority, to inquire about family members and contact numbers. Fourth, it is generally sensitive in nature, and according to the provisions of the "Interpretation", each type of information is limited to four types, and cannot be interpreted in an expanded manner, and the information involved in the case is information related to criminal offenses and does not belong to one of the four types. The second type of information can be interpreted as homogeneous, and each set of information involved in the case contains several pieces of scattered information, involving suspects, family members, victims, and family members, etc., and once it is publicly leaked, it may be criticized and isolated by social groups, or even discriminated against in employment and school, etc., and faces a greater risk of damage to personal rights and interests, so it is generally sensitive personal information.
In summary, the personal information involved in the case has four characteristics: formal identifiability, privacy in content, non-disclosure in origin, and general sensitivity in nature, and shall be found to be citizens' personal information required by the crime of infringing on citizens' personal information.
II. Conduct of intermediaries entrusting recommended lawyers to sign legal consultation contracts and charging fees beyond the scope of business is not a lawful business activity
The Interpretation stipulates that in any of the following circumstances, the circumstances of illegally purchasing or buying the personal information of ordinary citizens for the purpose of lawful business activities shall be found to be serious: (1) making a profit of 50,000 yuan or more; (2) having previously received criminal punishment for infringing on citizens' personal information or having received an administrative punishment within 2 years, and then illegally purchasing or buying it; (3) other circumstances where the circumstances are serious. In practice, the purchase or purchase of personal information for advertising and marketing activities is relatively common, and in order to uphold the modesty of the criminal law and reflect the policy of blending leniency and severity, the Interpretation sets special standards for conviction and sentencing. In addition, considering that the above-mentioned acts are not very harmful to society, even if they constitute a crime, they usually do not need to be upgraded to sentencing, so only the circumstances are serious.
During the trial of this case, the defender argued that Liu Hui obtained intermediary fees for introducing the case through normal business activities, and did not directly sell the personal information obtained for profit, nor did he involve illegal business operations, fraud and other activities, so the special charges set by the Interpretation for lawful business activities should be applied, and the circumstances should be found to be serious. The circumstances of the prosecution's accusations are particularly serious, and they are erroneous in the application of law.
In the author's opinion, the above-mentioned defense opinions are inconsistent with the facts, and Liu Hui's operation of Shenglu Consulting Company to engage in criminal lawyer entrustment business exceeds the scope of his lawful business and is not a lawful business activity. Article 5 of the Interpretation provides that if the amount or amount reaches 10 times or more of the threshold for serious circumstances, if the unlawful gains are more than 50,000 yuan, it shall be found to be a particularly serious circumstance and shall be sentenced between 3 and 7 years imprisonment.
Article 225 of the Criminal Law stipulates that two elements must be met at the same time to constitute the crime of illegal business operation, one is to violate state regulations, and the other is to seriously disrupt market order. From the perspective of literal interpretation, it contains two layers of meaning, the first layer is qualitative provisions, which requires both violating state regulations and disrupting market order to constitute illegal business activities, and the second layer is quantitative provisions, and only when the circumstances of illegal business activities are serious can they constitute the crime of illegal business operation. According to the qualitative provisions, legal business refers to business activities that do not violate national regulations and do not disrupt market order.
First, examine whether this case violates state regulations. State regulations refer to the laws and decisions formulated by the National People's Congress and its Standing Committee, and the administrative regulations, administrative measures, and decisions and orders issued by the State Council. First, check whether the business scope has the corresponding business qualifications, that is, whether the business is legal. According to the industrial and commercial registration information, the business scope of Shenglu Consulting Company is legal consultation (excluding law firm business), information technology consulting, etc. Clearly indicate that law firm operations are excluded, that is, they cannot carry out criminal litigation operations, and they cannot accept the representation of suspects or defendants in criminal cases as lawyers, meet with detainees, read files, appear in court to participate in court activities, and so forth. There are only 2 shareholders of Shenglu Consulting Company, Liu Hui and Liu (Liu Hui's sister, nominal shareholders, do not participate in any business activities and do not receive remuneration), and 1 employee, Liu Hui's cousin, who is responsible for running errands and miscellaneous work, etc., and the company does not have any practicing lawyers. However, Shenglu Consulting Co., Ltd. is engaged in the business of lawyer representation, and after establishing contact with two practicing lawyers at the door of the detention center, it informs the lawyer of the personal information obtained from Jin, and the lawyer is responsible for meeting with the suspect and appearing in court to defend him, while Liu Hui is responsible for contacting the suspect's family to sign a legal consultation contract and redistribute the fee and commission. Formally signing a legal consultation contract, but in essence, carrying out the business of entrusting a lawyer, using the legality of the form to cover up the substantive illegality of the business, and essentially negating the legality of business activities.
During the trial, it was suggested that Liu Hui was engaged in the business of intermediary introducing lawyers, and provided case sources to introduce lawyers to facilitate the entrustment, which was a legitimate legal service and should receive corresponding remuneration for the service. In the author's opinion, if it is indeed an intermediary referral business, Shenglu Consulting Company should sign an intermediary service contract with the law firm, stipulating that when providing the source of the case to facilitate the entrustment, it can charge a certain percentage of commission, and the entrustment fee will be transferred to the law firm's account first, and then transferred to the account of Shenglu Consulting Company in accordance with the contract. In this case, after Liu Hui obtained the source information of the case, he did not inform the lawyer's law firm, but privately introduced the entrusted lawyer, directly collected fees and deducted taxes, and then transferred them to the lawyer.
Secondly, review whether there are any violations in business activities. The suspect's family signed a contract with Shenglu Consulting, and the money was transferred to the account of Shenglu Consulting, and after deducting the 1% invoicing tax, Liu Hui transferred the money to his personal account, and then transferred part of the money to the designated lawyer as agreed. Liu Hui confessed that the reason for this operation is that if you charge through a law firm, you need to pay 15% tax. In fact, on the one hand, this practice violates the relevant provisions of the tax law and is obviously suspected of tax evasion; on the other hand, it violates the provisions of the lawyer law, which stipulates that lawyers should be uniformly entrusted by law firms to undertake business, sign a contract of entrustment, and collect uniform fees and truthfully record them in their accounts. In addition, Liu Hui violated the relevant provisions of the Company Law by mixing the company's account with his personal account and transferring money in and out at will. Of course, to determine whether an act is a legitimate business activity, it should be grasped as a whole, and the legality of the business activity cannot be completely denied on the basis that there may be tax evasion, illegal undertaking of business, or the mixing of unit and individual accounts in the course of business, nor can the illegality of subsequent business activities be inferred based on the illegal purchase of citizens' personal information in the early stage. Liu Hui's involvement in lawyer representation beyond the scope of Shenglu Consulting's business is a key factor and core point in denying that his conduct is a legitimate business activity.
During the trial, it was pointed out that Liu Hui helped some of the suspects' families to introduce and hire practicing lawyers, and used the information obtained from the victims and their families to facilitate the two parties to finally reach an agreement on compensation and probation, which played a positive role in guiding and helping the suspects and their families. Even if the suspect's family hires a lawyer through other means, there may be no substantial difference in the final verdict. Therefore, for the suspects, their families, victims, and other individuals, these acts did not have obvious harm to society, and it should be determined that Liu Hui's business activities were legal. The author disagrees with this. Legal operation refers to the business behavior that the business qualification and business scope are in line with the provisions of the law, which is a procedural compliance requirement. For example, to operate a monopoly or other restricted items, you must have a business license. Another example is the operation of securities and futures, insurance business, etc., which must be approved by the relevant competent state departments. In practice, in many cases of illegal absorption of public deposits and fund-raising fraud, some investors have recovered the principal and interest normally in the early stage, but this is not enough to change the illegal nature of the enterprise to illegally carry out the business of absorbing deposits and storing without a financial license. Therefore, in the overall business activities, even if there are circumstances such as effectively defending a suspect and eventually facilitating a settlement and probation, the illegality of Liu Hui's business activities cannot be fundamentally denied, and can only be considered as a sentencing circumstance.
Again, judge whether this case disrupts the market order. Liu Hui initially followed his cousin to work as a litigation scalper at the door of the detention center, and since he successfully used Jin to obtain internal information to facilitate the first business, in order to further expand his business and increase his income, he specially set up a Shenglu consulting company to form a fixed mutually beneficial relationship with Jin, and provide information through two-way interaction. A number of witnesses also confirmed that after the suspect was detained for 2-3 days, he received a mobile phone call starting with 185 (Liu Hui used his cousin's mobile phone to dial), and the other party claimed to be a detention center staff member, and asked the family to entrust a lawyer, make full use of the family's panic and eagerness at the time of the incident, and gain the trust of the family by impersonating their identities and throwing out accurate information, urging the family to sign an agreement and pay at Shenglu Consulting as soon as possible. Subsequently, there have been cases where some family members have asked for a refund and have appointed a lawyer, but they have not been able to do so. Liu Hui confessed that Jin provided more than 100 sets of information, negotiated more than 30 cases in total, and only 9 cases were verified by evidence, so the public prosecution only charged 9 cases and determined that the fees collected of 201,500 yuan were illegal gains.
As we all know, a benign and orderly lawyer-entrusted market should have the elements of information symmetry, rational communication, and equal rights and obligations, rely on professional support, and follow the general market law of survival of the fittest. The defendant in this case, Liu Hui, took advantage of the panic of his family to rush to the hospital when he was ill, and did not have time to understand the facts of the case and the possible legal consequences in detail, so he hurriedly promoted the entrustment matters, which inevitably led to a waste of judicial resources and personal financial resources, such as regret after the fact and repeated entrustment. This kind of litigation behavior has the characteristics of one-time transactions, short-term gains, low fees, poor services, and vicious competition for the source of cases, which not only undermines the normal order of market entrustment, but also damages the general public's sense of respect and dependence on the lawyer's profession, and easily causes a vicious competitive environment within the lawyer system to compete for price reductions, reduce service quality, and reduce professional services and normative standards. In summary, Liu Hui's conduct not only violated state regulations, but also seriously disrupted the normal order of the lawyer market, so it cannot be determined that it was a lawful business activity.
With regard to Jin's conduct, as the captain of the police team of a police station, his personal key enjoys more authority than that of ordinary police officers, and he can inquire about the information of all criminal and administrative cases in his jurisdiction, including the detailed information of cases handled by the police station and other case-handling units, and at the same time, he can find the contact number of the suspect's family and other related information through the actual population information system that only public security officers and police can enter. Based on the consideration of professional discipline and occupational risks, Jin was aware of the risks and boundaries of providing information, and if he provided information on the cases investigated by his own police station, it might lead to serious harmful consequences of crimes abusing public office, so he deliberately avoided the cases of the police station where he was located, and only provided information on the cases investigated by other police stations. At the same time, considering that the only way for Liu Hui to use the information was to contact the family members by phone to obtain the source of the case and collect fees, Jin eliminated the case information that did not have family members and contact numbers.
The 7th Amendment to the Criminal Law in 2009 provided for the crime of selling or illegally providing citizens' personal information and the crime of illegally obtaining citizens' personal information, and the 9th Amendment to the Criminal Law in 2015 combined the two crimes into the crime of infringing on citizens' personal information. This crime consists of two types of conduct, one is to obtain information lawfully and then use it illegally, and to obtain information in the performance of duties and provide services and then sell and provide it, and the other is to obtain information illegally by stealing, purchasing, buying, exchanging or other methods. Regardless of whether the front-end information source is legal or illegal, as long as there is an act of selling and providing, no matter whether the back-end information is used legally or illegally, as long as there is an illegal acquisition, it may be criminalized. Based on this, Jin's act of illegally providing information after using his position to lawfully obtain it and Liu Hui's act of lawfully (violating regulations) of information after illegally obtaining it should be established as a joint offense and can be found to be a joint crime.
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