On the Nature and Connotation of"Illegal"in the Crime of Infringing on Citizens'Personal Information
As a prerequisite element to judge whether the crime of infringing on citizens'personal information is established or not,the nature and normative implication of"illegal"are crucial to the reasonable application of the crime.The term"illegal"is widely used in China's Criminal Law.Its nature and connotation are not the same.It can be classified into two categories,namely,prompt illegal elements and constitutive elements.From the perspective of current scholars,the main difference lies in the debate between the two categories.Based on the following reasons,the constitutive element theory is more reasonable.These reasons include:the legal norms for personal information protection are relatively complete,technical and operational issues should not be the reason to deny the substantive significance of"illegality",the view of the right to self-determination of information cannot directly infer that"illegal"is a hint to the victim's consent,which is the cause of illegal obstruction,the legal norms of other countries are not directly applicable to China.As the most typical behavior types of the crime of infringing on citizens'personal information,illegal provision and illegal acquisition have the same position,link,role and harmfulness in the whole criminal chain,and the statutory punishment set by the criminal law is also the same.There is no reason for legislators to treat them differently in terms of prerequisite elements,therefore,the meaning of"illegal"and"violating the relevant provisions of the state"should be consistent.
Crime of Infringing Citizens'Personal InformationIllegalViolating Relevant National RegulationsPrompt Illegal ElementsConstitutive Elements
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