Expert interpretation of “judicial interpretation of crime of infringing personal information”: the scope of protection of citizens’ personal information is expanded and the penalty standard is clear
Zhengyi network, Beijing, May 9 (reporter Yu Xiao trainee reporter Shan pigeon) today, the Supreme People’s Court and the Supreme People’s Procuratorate issued the Supreme People’s Court, interpretation of the Supreme People’s Procuratorate on several issues concerning the application of law in handling criminal cases of infringement of citizens’ personal information (hereinafter referred to as interpretation). “Interpretation” provides detailed provisions on the scope of citizens’ personal information, the conviction and sentencing standards of crimes against citizens’ personal information, etc. What is the basis for the introduction of interpretation? In judicial practice, what impact will interpretation have? In this regard, the reporter interviewed Wu Shen Kuo, an argument expert who participated in the explanation and an associate professor of Beijing Normal University.
Justice Network: With the rapid development of Internet information technology, the advent of the big data era has brought more and more challenges to the protection of citizens’ personal information. In this context, what is the basis for the introduction of interpretation?
Wu Shen Kuo: With the development of the Internet, the economic value of citizens’ personal information has become increasingly prominent. At the same time, criminal crimes that infringe on citizens’ personal information occur frequently, and criminal subjects, criminal methods, social hazards and so on present an increasingly complex situation. The Criminal Law Amendment (IX) of the People’s Republic of China (hereinafter referred to as the Criminal Law Amendment (IX)) establishes “crime of infringing citizens’ personal information”, which expands the scope of criminal subjects and acts of infringing personal information. However, in judicial practice, the conviction and sentencing standards for the crime of infringing citizens’ personal information are still unclear, and there are still some disputes on the application of the law. Therefore, it is urgent to be clarified through judicial interpretation.
Justice Network: In your opinion, what are the highlights of interpretation on the criminal judicial protection of personal information?
Wu Shen Kuo: the highlights of interpretation are mainly reflected in three aspects: the scope of citizens’ personal information. Article 76 of the cyber security law of the People’s Republic of China stipulates: “Personal information refers to all kinds of information recorded by electronic or other means that can identify the personal identity of a natural person alone or in combination with other information, including but not limited to the natural person’s name, date of birth, ID number, personal biometric information, address, telephone number, etc.” On the basis of the above provisions, the interpretation further clarifies that “personal information of citizens” includes identification information and activity information, it refers to “all kinds of information recorded by electronic or other means that can identify the identity of a specific natural person alone or in combination with other information or reflect the activities of a specific natural person, including name, ID number, communication contact information, address, account password, property status, track of whereabouts, etc”.
The conviction and sentencing standards for the crime of infringing citizens’ personal information. The Criminal Law of the People’s Republic of China stipulates that anyone who illegally obtains, sells or provides personal information of citizens, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined or imposed alone; if the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall be fined. The general provisions of “serious circumstances” and “especially serious circumstances” in “interpretation” stipulate “serious circumstances” through investigation and investigation of relevant cases in judicial practice “, the identification standard of” The circumstances are particularly serious. Among them, the identification standard of “especially serious circumstances” mainly involves the quantity standard and harmful consequences. According to different information types, illegal acquisition, selling or providing citizens’ personal information “more than 500 pieces”, “more than 5,000 pieces”, “more than 50,000 pieces”, or illegal income of more than 50,000 yuan, or “causing death, serious injury, serious consequences such as mental disorder or kidnapping” “causing significant economic losses or adverse social impacts” is “especially serious circumstances”.
The crime of infringing citizens’ personal information involves problems such as combining leniency with severity, crime concurrence, unit crime, quantity calculation, etc. “Interpretation” specifically stipulates: “The crime of infringing citizens’ personal information is not a particularly serious case. The actor is a first-time criminal, and all the stolen goods are returned. If there is a manifestation of repentance, it can be identified as a minor case, no prosecution or exemption from criminal punishment; If it is really necessary to impose a penalty, it shall be lenient.” This provision fully implements the spirit of criminal policy of tempering justice with mercy. Another example is that the Criminal Law Amendment (IX) changes the prerequisite elements of the crime of infringing citizens’ personal information from “violating state regulations” to “violating relevant State regulations”. The interpretation stipulates: “Those who violate the provisions of laws, administrative regulations and departmental rules on the protection of citizens’ personal information shall be deemed as violating the relevant provisions of the state stipulated in one hundred and fifty-three articles of the criminal law.” Specifically, first, it is limited to national regulations such as laws, administrative regulations, departmental rules, etc., excluding non-state regulations such as local regulations; the second is to include all the provisions on the protection of citizens’ personal information in the above provisions. Those who violate the national regulations on the protection of citizens’ personal information, such as departmental rules, can also be identified as “violating the relevant provisions of the state”. In addition, the interpretation also clearly stipulates the conviction and sentencing standards for crimes against personal information units, and specifically stipulates the quantitative calculation rules for personal information.
Justice Network: previously, the “two high schools and one department” once issued the “notice on punishing crimes against citizens’ personal information according to law”, which defined citizens’ personal information. In contrast, what are the differences between the definition of citizens’ personal information in interpretation? How do you view this change?
Wu Shen Kuo: the notice on punishing crimes against citizens’ personal information according to law defines personal information as “citizens’ personal information includes citizens’ name, age, valid certificate number, marital status, work unit, educational background, resume, home address, telephone number and other information and data that can identify citizens’ personal identity or involve citizens’ personal privacy”. “Explanation” expands the scope of citizens’ personal information, expanding citizens’ personal information from identification information to identification information and activity information, “Citizen personal information refers to all kinds of information recorded in electronic or other ways that can identify the identity of a specific natural person alone or in combination with other information or reflect the activities of a specific natural person, including name, id number, communication contact information, address, account password, property status, track of whereabouts, etc”.
This change is to adapt to the needs of practical development. With the development of network information technology, citizens’ personal representation of information is also increasing. Therefore, appropriately expanding the scope of citizens’ personal information can effectively respond to the needs of practice.
Justice Network: Interpretation specifies the standard of conviction and sentencing. How do you think about the adjustment of the threshold of conviction?
Wu Shen Kuo: the Interpretation provides specific provisions on the conviction and sentencing standards for crimes that violate citizens’ personal information, “Explanation” aims at “serious circumstances” and “especially serious circumstances” from different aspects such as “information quantity”, “illegal income amount”, “information use”, “subject identity” and “subjective malignant”. Detailed regulations, this provision is in line with the needs of fighting crime in reality.
Justice Network: How has the criminal judicial protection of personal information of citizens in our country evolved from the updating and revision of charges, as well as the specific regulation on the scope of criminal subjects and illegal acts? How do you view this change?
Wu Shen Kuo: on November 1, 2015, the Criminal Law Amendment (IX) will “sell, the crime of illegally providing citizens’ personal information” and “crime of illegally obtaining citizens’ personal information” are integrated into “crime of infringing citizens’ personal information”, which expands the scope of criminal subjects and acts of infringing personal information. Interpretation further stipulates the criminal acts of infringing citizens’ personal information from ten aspects. These changes are put forward on the basis of summarizing judicial practical experience and adapting to the development of social reality, which can provide effective protection for citizens’ personal information.
Justice Network: The explanation mentioned the problem of combining justice with mercy involved in the crime of infringing citizens’ personal information. Can you introduce the specific situation?
Wu Shen Kuo: The explanation specifically stipulates: “The crime of infringing citizens’ personal information is not a particularly serious case. The actor is the first criminal, and all the stolen goods are returned, and there is indeed a manifestation of repentance, it can be determined that the circumstances are minor and no prosecution or exemption from criminal punishment; If it is really necessary to impose a penalty, it should be lenient.” This provision fully implements the spirit of criminal policy of tempering justice with mercy. However, it can be seen from the provisions of this article that this article only applies to the basic circumstances of the crime of infringing citizens’ personal information. For those who conform to the constitution of “The circumstances are particularly serious”, the lenient punishment stipulated in this article cannot be applied any more.
Justice Network: combined with the rapid development trend of Internet information technology, what impact will it have on internet platforms, especially those that “master” citizens’ personal information?
Wu Shen Kuo: for internet platforms that “master” citizens’ personal information, on the one hand, the platform itself should do a better job of security prevention for keeping citizens’ personal information, on the other hand, it should also try its best to participate in, cooperate with national judicial organs in criminal investigation activities of crimes against citizens’ personal information.
Justice Network: What impact will interpretation have on the judicial practice of cracking down on crimes against citizens’ personal information?
Wu Shen Kuo: the introduction of “interpretation” may cause a sharp increase in litigation over a period of time, because “interpretation” provides clear judicial application standards for criminal acts that infringe on citizens’ personal information in judicial practice and effectively solves relevant controversial issues concerning the application of laws. However, in the long run, with the deterrent force of criminal law, interpretation undertakes the important task of effectively solving and reducing the crime of infringing citizens’ personal information in practice.
Note: Jin Shangjin also contributes to this article
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expert interpretation of “judicial interpretation of crime of personal information infringement”: the scope of protection of citizens’ personal information is expanded and the standards for admission to punishment are clear. BEIJING, May 9 (reporter Yu Xiao trainee reporter Shan pigeon) today, the Supreme People’s Court and the Supreme People’s Procuratorate issued the supreme