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On the Determination of Crimes of Invasion of Personal Information

Author: SunLiWei
Tutor: XuZuo
School: Jilin University
Course: Criminal Law
Keywords: Personal Information Crime of Invasion of Personal Information Constitutive Requirements Judicial Determination
CLC: D924.34
Type: Master's thesis
Year: 2010
Downloads: 230
Quote: 1
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Abstract

The crime of invasion of personal information is the general designation of the crime of selling, illegally providing personal information and the crime of illegally obtaining personal information. According to 253rd provision of Chinese criminal law which is also prescribed in Amendments 7 to the criminal law of PRC, the crime of selling , illegally providing personal information is the conduct that state functionary and the staff of units of finance, telecommunication, transportation, education, medical institution etc, in violation of provisions prescribed by the state, selling or illegally providing personal information which is obtained when executing duties or offer services to others when the circumstances are serious. The crime of illegally obtaining personal information is the conduct that stealing or illegally obtaining above-mentioned personal information by any other means when the circumstances are serious. The crime of invasion of personal information is enacted in the latest revision of Chinese criminal law; it is not only in lack of more detailed interpretation, but also in lack of cases that can be drawn. So it brings puzzles to judicial practices. The paper is to discuss the judicial determinations of the crime of invasion of personal information.The paper is divided into three parts: introduction, main body and conclusion.In the introduction it elaborates the purposes, reasons of writing this paper and the present theory situation in China and foreign countries. It points out that the proper application of law in judicial practice is a pressing reality.The main body expounds general theory, the constitution of the crime and the judicial determination of the crime of invasion of personal information in five chapters.Firstly, the paper examines the overview of the crime of invasion of personal information. In the overview, the paper mainly introduces the legislative background, legislative status quo, and the concept of personal information. First, according to discussing the legislative background we can know the soil of legislation and know the urgency of the criminal law restraining the conduct of invasion of personal information in that getting ready for the following discussion to other aspects of the crime. Second, in the part of legislation’s status it introduces some provisions of Chinese law about protecting personal information. According to the introduction it makes us know that the lack of special law on protecting personal information is the fault between Criminal law and Civil law and the protection is not adequate and is not conducive to the protection of personal information. Third, when introducing foreign criminal law’provisions of protecting personal information the paper lists a number of relevant provisions of foreign criminal law. The list does a comparison between the following provisions of Chinese criminal law. Then the paper gives the common concept of personal information and discusses the relation between common concept of personal information and privacy. The paper also classifies personal information by the standard of secret.In order to emphasize that the constitutions of crime is a necessary part of judicial determination, the paper discusses the criminal object, the objective elements of the crime and the subject of the crime separately in three chapters.Secondly, the paper discusses the criminal objects including the criminal interest and the object of the crime. It discusses the criminal interest of the crime of invasion of personal information which lays a foundation for the following analysis of constitution of crime and the determination of crime. On the foundation of gaining a clear idea of the criminal interest, the paper analyzes the object of crime, pointing out that the scope of the object of crime is smaller than it in common concept of personal information in order to lay foundation for the next coming study.Thirdly, the third chapter of the main body discusses the objective elements of the crime of invasion of personal information which takes an important place in the paper and is the key part. First, it analyzes the way of conduct of the two crimes focusing on some typical way of conduct and discusses on two latest hot points. Then it classifies the serious circumstances by formal standards and material standards when discussed the circumstances for determination.Fourthly, the paper begins to discuss the subject of the crime. First, it focuses on the subject of crime, during which the paper discusses the subject of crime of selling, illegally providing personal information and the subject of crime of illegally obtaining personal information, analyzing the two’s characters and compare the two’s similarities and differences. Then the paper clarifies the doubtful points of the two.Finally, in order to fully determine the crime of invasion of personal information the paper compares the crime of invasion of personal information to similar and related crimes. And it emphasizes on the distinctions that are not easy to differentiate. Then the paper gives the way to distinguish and determine. Next, the paper studys on the act of removing irregularities for removing the criminal illegality of legitimate acts.In conclusion, basing on the emergence of first case of crime of invasion of personal information and its social repercussions, it points out that Chinese criminal law has taken the first real step in protecting personal information and the effect is worth looking forward to. But it needs to enact a law specified in protecting personal information so that the personal information can get adequate protection. So a more inseparable and multi-level law protecting system can be established.

On the Determination of Crimes of Invasion of Personal Information

Abstract

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