The boundary of citizens' personal information criminal protection in big data age: Focusing on substantive interpretation of “violation of the national relevant stipulations”
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D922.8;D924.3

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    Abstract:

    As "violation of the national relevant stipulations" is the prerequisite condition to establish the crime of infringing on citizens' personal information, it is important to grasp its nature and status, which is the basis to determine the border of protecting personal information by criminal law. In the crime, "violation of the national relevant stipulations" is only to suggest the existence of illegality, rather than the element of constitutive requirements. The legal interests protected by this crime are the tranquility of personal life, not the so-called right of informational self-determination. In the process of judicial determination of this crime, "violation of the national relevant stipulations" has two levels of value and significance. On one hand, it is necessary to examine whether the perpetrator has reason to hinder the illegality through the illegality suggesting function of "violation of the national relevant stipulations" after confirming that the behavior conforms to the constituent elements. On the other hand, in the stage of responsibility evaluation, we should estimate the existence of knowledge of illegality and the avoidability of wrongful acts by substantive interpreting of the legal benefits protected by the crime, and then we can decide whether attribute liability to the perpetrator or not.

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江耀炜.大数据时代公民个人信息刑法保护的边界——以“违反国家有关规定”的实质解释为中心[J].重庆大学学报社会科学版,2019,25(1):152~161

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History
  • Received:
  • Revised:September 05,2018
  • Adopted:
  • Online: January 08,2019
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