Viewpoint | Determination of "Trajectory" in the Crime of Infringing Citizens' Personal Information
Published:
2022-03-21
1. Criminal Law and Related Judicial Interpretations on the Crime of Infringing Citizens' Personal Information and "Trajectory" Provisions and Legislative Intent 1. Article 253 of the the People's Republic of China Criminal Law stipulates that anyone who, in violation of relevant state regulations, sells or provides citizens' personal information to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; 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 also be fined. Whoever, in violation of the relevant provisions of the State, sells or provides to others the personal information of citizens obtained in the course of performing their duties or providing services shall be given a heavier punishment in accordance with the provisions of the preceding paragraph. Whoever steals or unlawfully obtains the personal information of citizens by other means shall be punished in accordance with the provisions of the first paragraph. Where a unit commits the crimes mentioned in the preceding three paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of those paragraphs. 2. Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringing Citizens' Personal Information stipulates that "citizens' personal information" refers to all kinds of information recorded electronically or in combination with other information that can identify the identity of a specific natural person or reflect the activities of a specific natural person, including name, ID number, communication contact information, address, account password, property status, whereabouts, etc. Article 5, paragraph 1, item (III), stipulates that those who illegally obtain, sell or provide more than 50 articles of whereabouts information, communication content, credit information and property information shall be deemed as "serious circumstances" as stipulated in Article 253 of the Criminal Law; the second paragraph stipulates that the acts specified in the preceding paragraph shall be carried out, if the quantity or amount reaches more than ten times the standards specified in subparagraphs 3 to 8 of the preceding paragraph, it shall be deemed as "the circumstances are particularly serious" as stipulated in the first paragraph of Article 253-1 of the Criminal Law ". 3. The track of whereabouts belongs to highly sensitive information. The crime of infringing on citizens' personal information sets the threshold of "track of whereabouts" lower than the conviction threshold of ordinary citizens' personal information. This article stipulates that the determination standard of "track of whereabouts" has a great impact on the conviction and sentencing of such cases. The purpose of setting a separate conviction standard for the track of whereabouts is to strengthen the protection of citizens' personal and property safety, only when the complete travel route of the victim is known can it pose a major threat to his person and property, and only knowing the real-time point can not reach the degree of harm of obtaining the "track. According to a single point, it is impossible to reflect the final location of the victim. Only by gathering the points on a route can we get complete information about the place and destination of the victim. Obtaining complete travel information may cause damage to the victim's personal and property, and obtaining a single point cannot reach the corresponding degree of harm. If only the number of points is directly used as the number of tracks for conviction and sentencing, it violates the principle of criminal responsibility, and violates the original intention of the legislation and judicial interpretation of this crime. The 2. "trajectory" should refer to a "line" dynamic trajectory consisting of a start point and an end point rather than a static "point", which is in line with the general public's perception. When laws, regulations and judicial interpretations do not explain the meaning of "whereabouts", stricter standards should be adopted compared with general personal information on the issue of what is "whereabouts" and how to determine "numbers. According to the principle of modesty and restraint of criminal law, comprehensive consideration should be made from the literary interpretation of "whereabouts" and the general understanding of the public in daily life practice. "Trajectory" refers to the traces left by the action, and "trajectory" refers to the total path through which a point moves in space. According to the text, a "track" should refer to a complete action path formed by a point moving from the starting point to the end point in space. "Trajectory" should refer to a linear dynamic trajectory with a start point and an end point, rather than a static real-time point of the victim. It is generally believed in 3. criminal law circles that "line" rather than "point" should be used as the standard for identifying "track". 1. Professor Zhang Mingkai's Criminal Law (Law Publishing House, 2021, p. 1202) believes that the trajectory information should have certain time and space characteristics, especially the starting point and the ending point, which should last for a period of time from the starting point to the ending point. However, even if the actor acquires the static real-time point, due to the extremely short time and the lag of the return information, it is too late to commit acts that infringe personal legal interests such as injury. 2. Professor Gao Fuping's article "Obtaining Tracing Trajectory and" Sentencing "published in Shanghai Legal Daily in 2017 pointed out that" Tracing Trajectory is the trajectory formed by people moving at different points in time and in different geographical locations. ". 3. Professor Wang Wenhua pointed out in his article "Criminal Law Protection of Citizens' Personal Information in the Internet Age" published in "People's Procuratorate" in 2017 that "personal information includes not only" identity information "but also" activity information "such as whereabouts, such as personal whereabouts information of citizens obtained after mobile phone positioning. The former is static information and the latter is dynamic information." According to the theoretical explanation, the "trace trajectory" should have the characteristics of continuity, dynamics and integrity, and the linear trajectory is more in line with the characteristics and connotation of the "trace trajectory" than the point positioning. The meaning of "trajectory" in other 4. departmental regulations and government working documents is linear dynamic trajectory. China's relevant laws and regulations related to the protection of personal information, government documents related to the new crown epidemic prevention, there are similar expressions of "whereabouts", which represents the general understanding of "whereabouts" by government agencies and the public, and can be used as a reference for the standard of "whereabouts" in the crime of infringing upon citizens' personal information. 1. According to the third paragraph of Article 26 of the Interim Measures for the Administration of Online Taxi Reservation Service, except for cooperating with state agencies to exercise supervision and inspection rights or criminal investigation rights in accordance with the law, the online car-hailing platform company shall not provide any third party with drivers. Personal information such as the names of drivers, drivers and passengers... travel routes. Among them, the dynamic "travel route" as a whole is identified as the personal information of the passenger. 2, during the new crown epidemic prevention and control in many places epidemic prevention and control headquarters, CDC issued the "trace trajectory investigation letter", which has a complete starting point, the end of the linear trajectory as the "trace trajectory" identification criteria. Among them, the "whereabouts track" is the information that can completely reflect the starting point, end point and important place of the party's journey, rather than the real-time point information of the individual. 5. jurisprudence has explicitly interpreted the "trajectory" as a "linear dynamic trajectory". 1. The criminal judgment (2020) No. 39 at the beginning of the punishment of Anhui 1182 issued by the people's Court of mingguang city, Anhui Province shows that in this case, the public prosecution organ accused the defendant of obtaining a total of 2356 pieces of information on the whereabouts of the victim, of which 2041 pieces of information are the repeated position information of the victim in a static state. In the judgment, the court deducted the above-mentioned information in the static state, and finally found that the defendant obtained the whereabouts and trajectory information of the victim as 323. 2. The (2019) Beijing 02 Criminal Final No. 59 Criminal Judgment issued by the Beijing Second Intermediate People's Court stated that the defendant in this case used his work to sell the citizen Didi Chuxing records obtained in the process of providing services for profit. Among them, "Didi Chuxing" record is a round-trip record of taking transportation. The court of first instance identified the "drop travel" record as "track information", and the court of second instance upheld the original judgment. 6. epilogue Based on the above analysis, we believe that the crime of infringing on citizens' personal information about "obtaining the number of tracks of others" should follow the general understanding of "tracks of tracks" and should not be based on static real-time points, but should be based on the number of linear dynamic tracks for conviction and sentencing.
1. Criminal Law and Related Judicial Interpretations on the Crime of Infringing Citizens' Personal Information and "Trajectory" Provisions and Legislative Intent
1. Article 253 of the the People's Republic of China Criminal Law stipulates that anyone who, in violation of relevant state regulations, sells or provides citizens' personal information to others, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined; 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 also be fined. Whoever, in violation of the relevant provisions of the State, sells or provides to others the personal information of citizens obtained in the course of performing their duties or providing services shall be given a heavier punishment in accordance with the provisions of the preceding paragraph. Whoever steals or unlawfully obtains the personal information of citizens by other means shall be punished in accordance with the provisions of the first paragraph. Where a unit commits the crimes mentioned in the preceding three paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of those paragraphs.
2. Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Infringing Citizens' Personal Information stipulates that "citizens' personal information" refers to all kinds of information recorded electronically or in combination with other information that can identify the identity of a specific natural person or reflect the activities of a specific natural person, including name, ID number, communication contact information, address, account password, property status, whereabouts, etc. Article 5, paragraph 1, item (III), stipulates that those who illegally obtain, sell or provide more than 50 articles of whereabouts information, communication content, credit information and property information shall be deemed as "serious circumstances" as stipulated in Article 253 of the Criminal Law; the second paragraph stipulates that the acts specified in the preceding paragraph shall be carried out, if the quantity or amount reaches more than ten times the standards specified in subparagraphs 3 to 8 of the preceding paragraph, it shall be deemed as "the circumstances are particularly serious" as stipulated in the first paragraph of Article 253-1 of the Criminal Law ".
3. The track of whereabouts belongs to highly sensitive information. The crime of infringing on citizens' personal information sets the threshold of "track of whereabouts" lower than the conviction threshold of ordinary citizens' personal information. This article stipulates that the determination standard of "track of whereabouts" has a great impact on the conviction and sentencing of such cases. The purpose of setting a separate conviction standard for the track of whereabouts is to strengthen the protection of citizens' personal and property safety, only when the complete travel route of the victim is known can it pose a major threat to his person and property, and only knowing the real-time point can not reach the degree of harm of obtaining the "track. According to a single point, it is impossible to reflect the final location of the victim. Only by gathering the points on a route can we get complete information about the place and destination of the victim. Obtaining complete travel information may cause damage to the victim's personal and property, and obtaining a single point cannot reach the corresponding degree of harm. If only the number of points is directly used as the number of tracks for conviction and sentencing, it violates the principle of criminal responsibility, and violates the original intention of the legislation and judicial interpretation of this crime.
The 2. "trajectory" should refer to a "line" dynamic trajectory consisting of a start point and an end point rather than a static "point", which is in line with the general public's perception.
When laws, regulations and judicial interpretations do not explain the meaning of "whereabouts", stricter standards should be adopted compared with general personal information on the issue of what is "whereabouts" and how to determine "numbers. According to the principle of modesty and restraint of criminal law, comprehensive consideration should be made from the literary interpretation of "whereabouts" and the general understanding of the public in daily life practice. "Trajectory" refers to the traces left by the action, and "trajectory" refers to the total path through which a point moves in space. According to the text, a "track" should refer to a complete action path formed by a point moving from the starting point to the end point in space. "Trajectory" should refer to a linear dynamic trajectory with a start point and an end point, rather than a static real-time point of the victim.
It is generally believed in 3. criminal law circles that "line" rather than "point" should be used as the standard for identifying "track".
1. Professor Zhang Mingkai's Criminal Law (Law Publishing House, 2021, p. 1202) believes that the trajectory information should have certain time and space characteristics, especially the starting point and the ending point, which should last for a period of time from the starting point to the ending point. However, even if the actor acquires the static real-time point, due to the extremely short time and the lag of the return information, it is too late to commit acts that infringe personal legal interests such as injury.
2. Professor Gao Fuping's article "Obtaining Tracing Trajectory and" Sentencing "published in Shanghai Legal Daily in 2017 pointed out that" Tracing Trajectory is the trajectory formed by people moving at different time points and different geographical locations. ".
3. Professor Wang Wenhua pointed out in his article "Criminal Law Protection of Citizens' Personal Information in the Internet Age" published in "People's Procuratorate" in 2017 that "personal information includes not only" identity information "but also" activity information "such as whereabouts, such as personal whereabouts information of citizens obtained after mobile phone positioning. The former is static information and the latter is dynamic information." According to the theoretical explanation, the "trace trajectory" should have the characteristics of continuity, dynamics and integrity, and the linear trajectory is more in line with the characteristics and connotation of the "trace trajectory" than the point positioning.
The meaning of "trajectory" in other 4. departmental regulations and government working documents is linear dynamic trajectory.
China's relevant laws and regulations related to the protection of personal information, government documents related to the new crown epidemic prevention, there are similar expressions of "whereabouts", which represents the general understanding of "whereabouts" by government agencies and the public, and can be used as a reference for the standard of "whereabouts" in the crime of infringing upon citizens' personal information.
1. According to the third paragraph of Article 26 of the Interim Measures for the Administration of Online Taxi Reservation Service, except for cooperating with state agencies to exercise supervision and inspection rights or criminal investigation rights in accordance with the law, the online car-hailing platform company shall not provide any third party with drivers. Personal information such as the names of drivers, drivers and passengers... travel routes. Among them, the dynamic "travel route" as a whole is identified as the personal information of the passenger.
2, during the new crown epidemic prevention and control in many places epidemic prevention and control headquarters, CDC issued the "trace trajectory investigation letter", which has a complete starting point, the end of the linear trajectory as the "trace trajectory" identification criteria. Among them, the "whereabouts track" is the information that can completely reflect the starting point, end point and important place of the party's journey, rather than the real-time point information of the individual.
5. jurisprudence has explicitly interpreted the "trajectory" as a "linear dynamic trajectory".
1. The criminal judgment (2020) No. 39 at the beginning of the punishment of Anhui 1182 issued by the people's Court of mingguang city, Anhui Province shows that in this case, the public prosecution organ accused the defendant of obtaining a total of 2356 pieces of information on the whereabouts of the victim, of which 2041 pieces of information are the repeated position information of the victim in a static state. In the judgment, the court deducted the above-mentioned information in the static state, and finally found that the defendant obtained the whereabouts and trajectory information of the victim as 323.
2. The (2019) Beijing 02 Criminal Final No. 59 Criminal Judgment issued by the Beijing Second Intermediate People's Court stated that the defendant in this case used his work to sell the citizen Didi Chuxing records obtained in the process of providing services for profit. Among them, "Didi Chuxing" record is a round-trip record of taking transportation. The court of first instance identified the "drop travel" record as "track information", and the court of second instance upheld the original judgment.
6. epilogue
Based on the above analysis, we believe that the crime of infringing on citizens' personal information about "obtaining the number of tracks of others" should follow the general understanding of "tracks of tracks" and should not be based on static real-time points, but should be based on the number of linear dynamic tracks for conviction and sentencing.
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