10 case deepness is analytic encroach citizen individual information to commit a crime
The punishment Feburary 28, 2009 is repaired 7 add criminal law newly the 253rd one of, set sell, offer a citizen illegally information blame mixes the individual to get blame of citizen individual information illegally these two accusation. Opened so far those who apply criminal the arm of the law to protect citizen individual information is germinant.
The graph is distributinging plan of district of this kinds of case on, the province of before the rank 5 is Shanghai, Zhejiang, Guangdong, Jiangsu, Beijing, Anhui respectively, 70% what the case gross of this 5 provinces has held countrywide sum total. It is with Shanghai again exemple, the year trend of this kinds of case pursues as follows:
Encroach behavior of citizen individual information to already evened more 10 years into punishment. Meantime, the judiciary hits strength to its also increasing ceaselessly, but this crime not only did not decrease, have the tendency that grow in intensity instead, have a large number of encroachment even crime of citizen individual information and telegraphic bilk, kidnap is blackmailed confluent, cause bigger menace to right of citizen person property.
The article aims to be united in wedlock on May 8, 2017, two tall release " the newest judicatory that commits a crime about encroaching citizen individual information explains " (the following abbreviation " explanation " ) , handle the particular case that encounters in the case with judicatory, undertake with the conduction to this kinds of case the viewpoint is revealed communicate with solid Wu.
Core problem one: What is citizen individual information?
Explain the first criminal law a stupid person of one of 13 regulations " citizen individual information " , it is to point to what with the electron other perhaps way records to perhaps can identify identity of specific natural person to perhaps reflect all sorts of information of circumstance of activity of specific natural person with other information union alone, include communication of number of full name, identity document, communication to contact contrail of state of code of name of means, address, Zhang, belongings, track to wait.
Controversy focus: Whether to use at code of online broadband Zhang name to belong to " citizen individual information " ?
Have a difference of opinions: A kind of viewpoint thinks, " explanation " the first point out clearly " citizen individual information " include communication of number of full name, identity document, communication to contact contrail of state of code of name of means, address, Zhang, belongings, track to wait. The Zhang name code that illegal means place uses to get for the person all right in this case belongs to an explanation place is enumerated one of content.
Another kind of viewpoint thinks, pure broadband gets online Zhang date and password are simple number and abecedarian combination merely, do not have person sex, identity sex, cannot maintain for " citizen individual information " .
Tendency opinion: List to what the understanding of citizen individual information cannot pay close attention to formally only, more the essential feature that wants firmly to hold citizen individual information, namely alone or be united in wedlock with other information photograph, can achieve the goal that identifies citizen individual. In solid Wu, many travel humanness gets other citizen to register used Zhang name code in the place on the network through illegal means, password of account of the date that be like QQ, mailbox, pay treasure Zhang date to wait, the common characteristic of these Zhang date is: Divide the digit extra of account itself, account often is returned to perhaps can mirror instead inside account register a person (perhaps be registered person) the individual information such as mobile phone date, Id date, these Zhang name that change character can point to specific individual finally, especially on July 1, 2016 " blame bank pays orgnaization network to pay business government way " after carrying out, always have the Zhang mark that pays a function to will ask the ability after attestation can use real name (if pay treasure Zhang mark) . The Zhang date of renown attestation has these course fact extremely strong identity attribute, understandable for " explain " medium " Zhang name code " . But in this case, behavior person is gotten is date of broadband online Zhang and password, department of these Zhang date, password is comprised by random number and letter, after behavior person gets Zhang name code, just gained the access of the broadband, cannot learn the other information of everybody of name of be in debt, cannot have these Zhang date and specific citizen individual correspondence more. Accordingly, to these Zhang date get a likelihood illegally to be suspected of other encroaching belongings kind, destroy computer message to manage kind of crime, but do not belong to violate crime of citizen individual information.
Controversy focus: Whether do afore-mentioned information attribute citizen individual information?
Difference: A kind of viewpoint thinks, legal entity also is a natural person at the same time, unit of its full name, job and number of its telephone number attribute its individual information, also belong to the category of citizen individual information consequently.
Another kind of viewpoint thinks, the information of legal entity belongs to the industrial and commercial government that the enterprise ought to publish to social community to register information, the individual can pass the industrial and commercial website that register to undertake inquiring to this kind of information, attribute the information that ought to publish, cannot maintain be is citizen individual information.
Tendency opinion: To the judgement of this kind of circumstance, we need to set out from legislative original idea undertake valuation. The to individual freedom and rights and interests protection that the aggrandizement that the value basis of individual of legislative protection citizen depends on be being protected to privacy right brings. But to maintain public interest, to protect country and public safety, and the need that guarantees right of public know the inside story can is opposite the individual information of a few citizens undertakes announcing. According to what order released the State Council 2014 " business information is public show temporary regulations " , business information is public show ought to make public truely, in time. The full name of legal entity and its job unit belong to reason the category that ought to make public.
And to case corporative telephone number this one information, as we have learned, the enterprise undertakes the industrial and commercial moment that register needs to offer legal person telephone, but this one information is making public a network and cannot inquire, reason is in when encountering this kind of case, the conduction that highest check released 2018 this kind of case is how-to put forward to judge train of thought one kind: Fair chance is public, illicit machine illicit is used, namely industrial and commercial to the enterprise the information such as the mobile phone that registers the place in waiting for information to include, telephone number, ought to make clear the utility of this number. To be being bought by the company, the information such as use mobile phone, telephone number, do not belong to the category of individual information, and " company agency person is in industrial and commercial register number of individual phone, mobile phone is registered in waiting for an activity " still attribute individual information.
Controversy focus: The information that sells of one's own accord to this part whether ought to plan enter crime several?
Difference: A kind of viewpoint thinks, c some is not buy information directly from place of the injured party, the injured party offers a target is not C some, not bright show agree with C the information that some obtains them, reason is formed encroach individual information to commit a crime, ought to plan enter total a number.
Another kind of viewpoint thinks: If evidence proves those who provide pertinent information to the injured party is active, seasonable not be to offer C directly some, this share information also cannot plan enter crime several.
Tendency opinion: The value base that individual information protects depends on privacy counterpoising, and of information main body agree, can be considered as afore-mentioned pair of rights abandon, the use use that wants information only right now agrees with limits without what exceed person be collectioned, although intermediate occurrence resale, even information is used at violating utility, unfavorable also maintain commit a crime to encroach citizen individual information.
Core problem 2: How to maintain " offer illegally " ?
The explanation provides citizen individual information the 3rd times to specific person, and through website sth resembling a net other perhaps way releases citizen individual information, ought to maintain for criminal law a stupid person of one of 13 regulations " provide citizen individual information " .
Without be being collected person agree, provide the citizen individual information that gathers legally to other, belong to criminal law a stupid person of one of 13 regulations " provide citizen individual information " , but cannot identify specific individual through processing and irrecoverable except.
Setting: Before October 2016, in the average citizen of Shanghai, the information of building property right of aleatoric address can inquire after can holding this person Id to the praedial branch that register deals with proper procedures and pay fixed fee, it is common say " pull produce tone " . After October 2016, this city inquiry regulation undertakes modification, need by him landlord, the data ability such as the photocopy of Id of person hold landlord that perhaps does business with landlord undertakes inquiring. And before this case happened in October 2016.
Controversy focus: Whether is the behavior of E belonged to encroach citizen individual information?
Difference: A kind of viewpoint thinks, produce tone to cannot have been moved casually now now take, the behavior that E sells this information is formed encroach citizen individual information to commit a crime; Another kind of viewpoint thinks, the behavior of E is not formed encroach individual information to commit a crime, because produce the everybody when tone on record is sent to be able to be checked, attribute public information. Although later administrative regulations undertook adjustment, but law not go against the river and go to already.
Tendency opinion: E has been formed encroach citizen individual information to commit a crime, although produce tone message everybody to be able to be checked at that time, but everybody can be checked, representing him is not citizen individual information, the yield of average house can include on tone: The information of the circumstance such as address of house-owner full name, building, size, area, as him landlord, just when be below the circumstance,not be willing to give afore-mentioned information casually expose. And the housing information that also provides Everyman without law ought to be made public to the society, it and above says company is industrial and commercial the information that register is different. And although the behavior of E is to obtain lawful, but still form encroach individual information to commit a crime, reason is he disobeyed the premise that provides information -- the person that the course is collected agrees. Explain the 3rd the 2nd specific provision: Without be being collected person agree, provide the citizen individual information that gathers legally to other, belong to criminal law a stupid person of one of 13 regulations " provide citizen individual information " , but cannot identify specific individual through processing and irrecoverable except.
Core problem 3: How to maintain " get illegally " ?
The explanation disobeys a country the 4th times to concern a provision, through buying, receive, the means such as exchange gets citizen individual information, perhaps fulfilling obligation, citizen individual information gathers in offerring service course, belong to criminal law a stupid person of one of 13 the 3rd section provision " get citizen individual information illegally with other method " .
Controversy focus: If experience case information can be maintained,be citizen individual information (this are actually open to question also, it is OK that our apt thinks) , so whether is the behavior of F belonged to be gotten illegally?
Difference: A kind of viewpoint thinks, the website undertakes hinting according with handling a demand to the mobile phone number that has registered, the gimmick of use enumerate is not the loophole that exploits website itself existence, also be opposite without breakthrough website at the same time the confidential principle that registers user information, do not have illegal sex. Antagonistic point of view thinks, the behavior of the mobile phone number that F uses the method of enumerate to get cause client did not ask for those who get cause client group to agree, f undertakes commodity promote with client of this pair of causes, what also give a mobile phone number is possessory the worry on the life that created certain level, the citizen individual that its behavior encroached place of blame of citizen individual information to protect is quiet the law beneficial of the life, have a society to endanger a gender.
Tendency opinion: Right " get illegally " the cognizance of action shift wants accurate hold " disobey a country to concern a provision " this one basic premise. " explain " the 2nd regulation, of the regulation that regulations of lawbreaking, administrative regulations, department protects about citizen individual information, ought to maintain for criminal law of one of the 253rd regulations " disobey a country to concern a provision " . In this case, f gets the confidential measure that the behavior of information did not bypass the website is installed, yi Weili perhaps is used with website flaw invade the gimmick such as website server, very the regulation that the gimmick of F of it's hard to say violated active law statute, although gave the holder of mobile phone number to cause particular worry, but this not can on the contrary the method behavior of bright F has illegal sex. Notable is highest check released on May 16, 2017 " 6 encroach case of model of crime of citizen individual information " in, have one case " piece some encroachs such-and-such, Yao Mou case of citizen individual information " (its referee argument is: Use baleful program batch to get information of website user individual illegally, form violate crime of citizen individual information) have certain similar sex with the action shift of this case, but exist again substantially different, main distinction depends on, the person such as some encroachs Zhang Mou in case of citizen individual information, tie the hole that the website oneself that use exists, ill will gets information, can think to disobey a country to concern a provision. And the enumerate law of this case F very the loophole that it's hard to say exploited a website, actually although the website knew this condition, also have repair hard or improve.
Controversy focus: Is APP excessive whether to read the act that take and uses information of mobile phone user to form encroach citizen individual information to commit a crime?
Difference: A kind of viewpoint thinks, this behavior is not belonged to encroach citizen individual information, because APP is read,take this kinds of information to fasten what agree through the user. And did not give another person information pass on, it is to be used at company dun to use only. And another kind of viewpoint thinks, this user agrees to be not true user meaning to express, if the user does not agree to cannot use APP, although information does not have outflow, but call to relatives and friends through reading extraction mobile phone address book the behavior of dun, caused bigger worry to the user.
Tendency opinion: According to " network safety law " reach " service of news of process of mobile Internet application administers a regulation " , the person that mobile Internet applies a program to offer ought to build safety of perfect user information to protect a mechanism, collect, information of use user individual ought to follow lawful, proper, necessary principle, bright show the purpose that gathers use information, means and range, agree via the user. The dot is in the key because of this case to be denied then bright the use use that showed information, when this company is being collected, whether bright show information of collection mobile phone address book to will be used at urging to collect debt, if do not have bright show, use at this utility after collect however, be suspected of disobeying afore-mentioned countries to decide, can be maintained to be get illegally.
Core problem 4: How to maintain " is the clue serious " this one standard that enter a blame?
Explain the 5th to be gotten illegally, sell or provide citizen individual information, have one of following state, ought to maintain for criminal law a stupid person of one of 13 regulations " the clue is serious " :
(one) sell or provide track contrail information, be used at crime by other;
(2) know or ought to know other to use citizen individual information to carry out crime, sell to its or offer;
(3) get illegally, sell or provide the content of track contrail information, communication, information that sign a letter, property information of 50 above;
(4) get illegally, sell or provide information of accommodation information, communication record, healthy physiology, trade the citizen individual information that the other possibility such as information affects safety of person, belongings of 500 above;
(5) get illegally, sell or offer the 3rd, the citizen individual information beyond the 4th regulation of 5000 above;
(6) the amount did not achieve the 3rd to set a standard to the 5th, but press corresponding scale aggregate reach concerned amount level;
(7) illegal earning of 5000 yuan of above;
(8) sell the citizen individual information that in fulfilling duty to perhaps offer service course, obtains or offer another person, amount or amount achieves the 3rd to set standard half above to the 7th;
(9) because encroach citizen individual information to had gotten criminal,ever was punished or administration has sufferred to punish inside 2 years, get illegally again, sell or provide citizen individual information;
(10) the case with other severe scenario.
Controversy focus: Address of account citizen full name, building, area, trade does the documentation department of amount make easy information or belongings news?
Difference: A kind of viewpoint thinks to rise ceaselessly as house price, the house property of a lot of citizens already held the highest proportion of its household total assets, reason gets a citizen to buy the deed of room information, it is the house property state that mastered a citizen actually, should hold afore-mentioned information for property information, 50 can enter a blame.
Another kind of viewpoint thinks, although point to house property,the building makes easy news, but still be to make easy news substantially, because of break a contact still appears likely in trading, trade the circumstance such as break down, the building trades the circumstance that the circumstance cannot be equal to own house property at the citizen directly, reason ought to be maintained cease to hand in credulity, 500 ability can enter a blame.
Tendency opinion: The belongings sex element that although included a citizen to buy a house,house property makes easy news, but the still trades process that its react constitutionally, weak on important rate at property information, ought to abide by the decision criteria of poor dissimilation, say its and the information yield tone belongings condition that can reflect citizen individual, and with safety of person, belongings sensitive information distinguishs direct and relevant height to come.
Explain eleventh after getting citizen individual information illegally, sell again or offer, a number of citizen individual information do not repeat calculation.
To different unit or the individual sells respectively, provide information of same citizen individual, a computation of several accumulative total of citizen individual information.
To a number of information of batch citizen individual, maintain directly according to the quantity that seize, but evidence proves information is truthless or reduplicative except.
Controversy focus: In hunt down a large number of information, behavior person is exculpatory among them below the circumstance with partial false information, how to hold information several?
Tendency opinion: Look from inside practice, involve citizen individual except minority outside the case of sensitive information, major encroachment citizen individual information kind information content of case experience case is tremendous, be in a case is medium, it is tremendous and difficult that requirement judiciary undertakes be checkinged one by one existing to the true bogus of experience case information. Reason " explanation " be opposite the 11st times information of batch citizen individual the computational regulation of several undertook making clear: To a number of information of batch citizen individual, maintain directly according to the quantity that seize, but need to notice, because origin is ambiguous, perhaps go up the home offers same information intentionally to trade with increasing information amount to rise amount, identical perhaps travel is on the move for many times inside course of study, the information that the suspect obtains often appears information reduplicative phenomenon, arrive from the first time collect of information flow direction society, can have certain time difference, the information some a few years ago still is among the criminal trade, this inevitable occurrence invalidation information is invalid perhaps information, and these information because its cannot correspondence arrives specific citizen, also do not have privacy sex, so the explanation sets at the same time: But evidence proves information is truthless or reduplicative except.
Handling a case in the process, survey report is opposite only commonly restore into travel data and be secured to conserve by the electronic data of appraisal, issue the appraisal verdict that counts about file size and byte, and to there is how many news in the file, the characterization is not made in general survey report. Accordingly, information offers in behavior person truthless, have repeat wait for exculpatory premise to fall, the it whether have apologetically is certain to whether have apologetically basis that answers to inspect behavior person to put forward mainly is propped up, and this basis that prop up does not need to reach cognizance crime fact " really sufficient " degree, the member that want enough to give judicatory the person only is formed " have or do not have " the heart believes firmly can. At the same time branch of judicatory solid Wu still can pass consistency of fluctuation home information to go more automatically than amount of right, information authenticity of information of heavy, the injured party samples check wait for means, what be a person to going is exculpatory undertake check test and verify.
Controversy focus: Subjective go up the citizen individual message that wants to acquire less amount, the home bales on of information of individual of deferent and many citizen, how to hold a blame several?
Review analyse: Behavior person should join below this kind of circumstance how much do its pay the fare that buys information, the processing means of the information that gets to place will undertake deciding integratedly. If although behavior person is subjective,go up not to want so much information apologetically, but the fee that still paid complete information wins place complete information to all give save did not delete, can maintain its subjective on indulge is gotten those who exceed limits information is intended.
Core problem 5: How to understand to be managed legally?
The explanation is lawful management activity the 6th times and buy illegally, receive this explanation the 5th the first the 3rd, the citizen individual information beyond the 4th regulation, have one of following state, ought to maintain for criminal law a stupid person of one of 13 regulations " the clue is serious " :
(one) use buy illegally, received citizen individual information gains profit of 50 thousand yuan of above;
(2) because encroach citizen individual information to had gotten criminal,ever was punished or administration has sufferred to punish inside 2 years, buy illegally again, those who receive citizen individual information;
(3) the case with other severe scenario.
The action that the money before carrying out sets, will buy, received citizen individual information sells illegally or offer, conviction standard of measurement of penalty is applicable the provision that explains the 5th originally.
Controversy focus one: Whether is the behavior of K belonged to " manage legally " ?
Difference: A kind of viewpoint sets out from the form that promotes action, the behavior itself that thinks to buy individual information to be used at advertisement to promote is not belonged to " manage legally " , because it was disobeyed " consumer rights and interests protects a law " (the following abbreviation " disappear law " ) the 29th the 3rd prohibit sexual regulation, namely " operator agrees without consumer or request, or consumer expresses clearly to refuse, must not send commerciality message to its " , from this of the intermediary in case push sell to break the law to belong to manage. Another kind of viewpoint sets out from the substance that promotes action, if behavior person is put in consumer of exaggerated conduct propaganda, deceit, dodge a tax to wait for the act that violates administration statute,think, cannot maintaining its is " manage legally " , not applicable " explain " the 6th concerned regulation.
Tendency opinion: " explanation " in what weigh " manage legally " ought to be attention behavior person buys information to be used at the professional work that begin lawful, is not exacting its are managed not any illegal behavior. Want will " break the law manage " and " the general illegal behavior in managing " the division is separate come. " explanation " medium " manage legally " unlike " break the law manage " , ought to be in the light of the professional work that whole company begins character, specific should see behavior person (reach its are located company) scope of operations and the aptitude of management business, formalities.
Controversy focus 2: How to understand " manage legally " in gain profit? Use what facilitating building bourse obtains the citizen individual information that gets illegally " commission " whether to belong to " manage legally " in " gain profit " ?
Tendency opinion: Hold 3 element:
1, gain profit the principle that is different from illegal earning, gain profit those who point to is to manage income normally. Illegal earning does not deduct guilty cost, gain profit those who point to is the profit that accrual deducts cost expenses.
2, " buy illegally, received citizen individual information " with " be managed legally and gain profit " have particular corresponding concern. Namely, need has certain evidence to make clear, the citizen individual information that gets illegally and manage legally gain profit between existence is associated. Cannot say in every case was carried out buy deed, and company also gain exceeds 50 thousand yuan, maintain accord with a blame condition, want those who facilitate to look whether is trading related to information main body, perhaps be the associated sex sale that has through this information.
3, responsibility for an offence suits all right. Will understand from legislative original idea, " explain " the 6th department is special to legal operator from broad clause, aim to be the legal operator with a few not big harms to find a way giving a pain. What what do after the explanation is released in top magic art is authoritative this understanding has been done namely in unscrambling, lab of top magic art is right " explain " writes understanding and applicable in more farther point out its meaning. Set out from this one original idea, we think applicable " explanation " what enter a blame the 6th times is implicit premise is: The behavior of behavior person had accorded with main provision (be like the 5th) conviction standard, be in for the person all right namely accord with " manage legally " below premise condition, should satisfy at the same time get information amount bigger and gain profit the ability of 50 thousand yuan of above can consider a fault. Should combine each district in solid Wu in addition different economy grows a standard, integrated consideration crime endangers degree, accomplish photograph of punishment of responsibility for an offence to suit.
