With the development of science and technology, the network has entered thousands of households and penetrated into various fields of personal life, social operation, and national development. As a medium for its various functions, the value of information is becoming more and more prominent. The Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Infringement of Citizens' Personal Information (hereinafter referred to as the "Interpretation"), jointly promulgated by the Supreme People's Court and the Supreme People's Procuratorate in 2017, has to a certain extent solved some of the high incidence and difficulties encountered in the application of article 253 of the Criminal Law in judicial practice, set certain standards for the most conviction and sentencing for infringement of citizens' personal information, added new content to theoretical research in the academic circles, and also put forward new requirements for the protection of citizens' personal information security. It is worth noting that although the promulgation of the Interpretations has solved a large number of difficult problems in the judicial application of this crime and made up for many loopholes in the protection of personal information, because some of the provisions still reveal principles and ambiguities, as well as the pluralism of the characteristics of this crime and the variability of the implementation of behavior, there are still unresolved controversial issues in this crime, which are worthy of in-depth study.
The act of committing the crime of infringing on citizens' personal information
(1) Determination of the sale of citizens' personal information
The "sale" in the crime of infringing on citizens' personal information is not based on equivalent exchange. There are two views in the academic circles on whether the perpetrator's act of "selling" citizens' personal information in this crime requires the other party to pay the corresponding consideration, the first view is that the sale in this crime is a realistic exchange of goods and property equivalent, so there must be reasonable consideration and personal information transaction in the process of committing the crime. Another view is a rebuttal to the first view, which requires no consideration, and can be considered as "selling" as long as the perpetrator of this crime makes a paid transfer of citizens' personal information for the purpose of profit.
Most scholars take the second view. The reason is that in the normal circulation process of commodities, because the transaction behavior of the goods itself is permitted by law, or even protected by law, there is no illegality, so there are reasonable and legal national standards, commercial standards, etc. in the circulation process of commodities, but for some contraband, counterfeit and shoddy products or items whose circulation methods violate the law, such as the personal information of citizens in this crime, such items cannot enter the circulation field because the law prohibits or violates the law, so there is no prevailing price standard. After all, only commodities that can be measured in monetary terms can apply the rules of equal exchange. For example, in the case of Shao Baoming and others infringing on citizens' personal information, the defendant sold a variety of different types of citizens' personal information, such as household registration information, mobile phone location, accommodation records and other information, and the fees charged for each article ranged from 10 yuan to 5,000 yuan, which has reached the level of seriousness of the circumstances. When the defendant sells information for profit, the fees received are not a clear amount, obviously there is no standard consideration, more like arbitrary pricing, randomly collected in different situations, and the same situation can be found by consulting similar cases, and since there is no so-called market price for personal information, we can conclude that when determining the sale of this crime, the need for the other party to pay the corresponding consideration cannot be used as the basis for constituting the act of selling information. Because there is no so-called reasonable consideration for this kind of transaction that violates the law. Moreover, it will be more convenient to directly use the benefits actually obtained by the perpetrator in the process of committing the crime when determining the amount of illegal proceeds of crime, and save judicial resources. In addition, each person's information, the same person's different kinds of information, its value, the degree of importance is also different, and even the same information in different scenarios of the status of the role is also different, even if the law according to a certain standard in the value of different kinds of personal information to differentiate, set a roughly unified standard, it is difficult to cover the quantity, the type of personal information as astronomical, but easy to lead to judicial rigidity.
(2) Determination of providing citizens' personal information
When the original text of the Criminal Law stipulates the crime of infringing on citizens' personal information, the "providing" behavior is divided into the act of selling and the act of providing, and there are many overlapping parts of the sale and the provision in nature, in order to correctly determine the "providing" act in this crime, the following two issues should be discussed:
First, what is the relationship between the act of "offering" and the act of "selling"? According to article 3 of the Interpretation, the act of "providing" in this crime includes three specific forms of expression: first, the perpetrator provides the personal information of citizens held by the actor to a specific object, second, where the personal information is publicly released or disseminated, and third, the information of the party that was originally lawfully collected is provided to a third party in violation of the law when the information is rejected by the person collecting the information or has not yet obtained the consent of the person whose information was collected. The above provisions relate to the relationship between "offering" and "selling" in this crime, because the above three forms of providing can actually be completed by way of sale, and there are two possibilities for the relationship between "selling" and "providing" involved in the law, the first is that "providing" and "selling" are juxtaposed, and there is no intersection between them. The other is the inclusion relationship between the act of "offering" and the act of "selling". This article argues that the "sale" in this crime should be included in the "offering", and the act of "selling" is actually one of the ways in which the act of "offering" should be covered. Analyzing the relevant provisions of the Interpretation, the "provision" in this crime refers to the perpetrator deliberately enabling a person who should not know to obtain the personal information of citizens in his possession; while "selling" means that the personal information of citizens in his possession is made known by the actor to other persons who should not have known personal information through transactions. What "offer" and "sell" have in common is that both give information to people who should not have access to citizens' personal information, and the difference is that the offer does not necessarily earn remuneration, and the sale necessarily earns remuneration. In other words, the act of "selling" adds the requirement for the purpose of obtaining remuneration on the basis of the act of "providing", but its basis is the same as that of "providing", so it can be seen that the act of "providing" and the act of "selling" are not in a parallel relationship, but should be included in the "offering", and the criminal law actually identifies the "sale" in this crime as a kind of "offering". The reason why the legal provisions mention both the act of "selling" and the act of "providing" is not to separate "sell" from "offer", but to emphasize that "sale" is a typical way of "providing".
Second, does the object of "provision" in this crime have to be specific? To implement the act of "providing", there must be a corresponding object of receiving information. "Providing citizens' personal information to specific persons is 'providing' citizens' personal information, and there is no doubt about this. However, there are different understandings as to whether the release of citizens' personal information through information networks or other channels is a 'provision of citizens' personal information'." First, the provision of information to specific people will be compared with the objects of dissemination and publication through the Internet, which will enable more people who should not have known about the information to obtain information, which has the uncertainty of the recipient of the information, the possibility of causing greater harmful results, and the higher legal harm. Since the act of the perpetrator providing information to a specific object can satisfy the conditions for the degree of harm of the legal benefit of this crime, the act of providing information to an unspecified object undoubtedly meets the requirements of the social harmfulness of this crime in terms of the degree of legal harm that may be caused. Secondly, Article 3 of the Interpretation also recognizes that the means of "providing" in this crime include public publication and dissemination, which shows that the Interpretation also supports the fact that "providing" in this crime includes the release and dissemination of such circumstances to unspecified targets. Finally, many cases have also proved that in practice, there will indeed be public releases and dissemination of information, and it is obviously unreasonable not to deal with such cases. For example, in the case of Ding Yaguang's infringement of citizens' personal information, the defendant took advantage of a loophole in the system of a network technology company that provided technical support services to thousands of hotels to download the hotel stay records stored by him, and after downloading this information, the defendant uploaded it to his personal website to provide a fee-based download service.
In this case, the perpetrator published the citizen's personal information on the Internet, as long as the person who registered as a member can obtain the information, the object of provision is obviously unspecified, this kind of behavior of providing others' personal information to the unspecified object is worse than the nature of the act of providing the citizen's personal information to the specific object, and because the unspecific nature of the obtainer may cause unpredictable consequences, maintaining the stability of the order is the responsibility of the criminal law, and for this kind of behavior with a higher possibility of legal benefits and harm, it should be regulated by the criminal law. Therefore, the "provision" in this crime should include the situation of dissemination and publication to unspecified groups of people.
Excerpt from: Guangdong University of Finance and Economics Chen Jianqing, Wang Zhen, "Determination of the Crimes and Circumstances of Infringing on Citizens' Personal Information"