Recently, King&Capital Law Firm Yan Huainan, Li Jingyu lawyers in the handling of Liu suspected of infringement of citizens' personal information crime case, combined with the suspect and the case, systematic analysis of this type of case situation and criminal policy, scientific research strategy, find the focus of the defense, the implementation of accurate and effective defense, the case was ultimately to the procuratorate decided not to prosecute ("doubtful not to prosecute") way to the end of the client Liu and his family highly recognized. The case was finally closed by the procuratorate's decision not to prosecute ("not to prosecute for lack of evidence"), which was highly recognized by the client Liu and his family.
Related cases:
Suspect Liu Mou is a recent college graduate, has a unique hobby of chasing stars, in order to follow the artists, Liu Mou in a Beijing airport to his WeChat friend Zhang Moumou contact and purchase in the form of a monthly subscription to buy star itinerary information of about 1,000 articles. Liu mou in March 2022 by the airport public security organs and was taken to bail pending trial compulsory measures, in July 2022 transferred to the procuratorial organs for examination and prosecution, with the case together with the transfer of two other suspects, but also recently graduated from college, suspected of the situation and Liu mou is basically the same.
Combined with the suspect and the case, to establish the goal of acquittal defense
Liu mou for just graduated to join the work of college students, combined with China's criminal penalties on the personal impact of the citizens of the reality, if Liu mou was held criminally liable even the lightest sentence, the criminal record will be accompanied by a lifelong, on their own and their children's employment in the future will have an impact. At the same time, the case based on the star and other hobbies and buy information, pure motives, and did not cause tangible damage, the case investigation and prosecution during the Liu were released on bail pending trial, so even if held criminally liable, the sentence is relatively light, and his parents are very worried about the possible criminal record.
In summary, the defense will not be guilty established as the defense goal of the case.
Systematically analyze the situation and criminal policy of this type of case, and establish a scientific defense strategy.
At present, the security of citizens' personal information has become an issue of great concern to the whole society, and the crime of violating citizens' personal information is at a high level, for which the state has increased the punishment of such cases from the legislative and judicial levels. At the legislative level, laws on the protection of personal information have been introduced one after another, especially in the criminal field, from the establishment of the crime of infringing on citizens' personal information in the Amendment (VII) to the Criminal Law to the consolidation of the relevant circumstances into the "crime of infringing on citizens' personal information" in the Amendment (IX) to the Criminal Law, which expanded the scope of the subject of the crime and elevated the configuration of the legal penalty, especially the "Criminal Law Amendment (VIII)". 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 on Citizens' Personal Information (implemented on June 1, 2017, hereinafter referred to as the "Interpretation") has comprehensively and systematically stipulated the conviction and sentencing standards of the crime of infringing on citizens' personal information and the application of relevant laws. The level of judicial practice has also increased the severity of penalties, for example, between February 2009 and December 2017, the number of effective judgments by courts nationwide was 4,942, while the number of effective judgments for crimes of infringing on citizens' personal information in the year after the Interpretation came into effect was 2,9201 .
After searching the existing judicial cases, the defense has found almost no acquittals in similar cases of unlawfully obtaining crimes against citizens' personal information (which may be limited to searching methods or the reason why the cases are not made public). At the same time, according to the "personal information protection law", "criminal law" and the "interpretation" of the provisions of the trip track information belongs to the sensitive category of personal information, illegal acquisition of more than 50 for the aggravating circumstances, more than 500 is particularly serious circumstances, according to the indictment and the evidence in the case, Liu obtained the information is certainly in the 500 or more, such as if the acquisition of the information for the characterization of the trip track, then Liu not only be Convicted and sentenced, but also in the upgraded sentence grade. Therefore, the focus of the defense in this case should be established on the characterization and number of pieces of artist information obtained by Liu.2 In particular, the issue of characterization.
Only around the defense focus, carefully prepare defense materials and implement effective defense
On the basis of establishing the above defense objectives and defense focus, the defenders focused on the key points to prepare defense materials and according to the development of the situation in a timely manner to take effective defense and communication means.
First, highlighting the source and authenticity of the information obtained by Liu Mou is unknown, based on the existing evidence can not be directly convicted and sentenced Liu Mou.
According to the provisions of relevant laws and judicial interpretations, personal information refers to electronic or other means of recording a variety of information that can individually or in combination with other information to identify the personal identity of natural persons. Liu Mou purchased the artist's itinerary information from his WeChat friends, but the evidence in the case could not determine the first-hand source of the said information, i.e., it could not be determined whether the said information was non-public information, and the authenticity of the itinerary information could not be confirmed. At the same time, the defense in the second supplementary opinion submitted from the perspective of the urgency of the infringement of legal interests, analysis is not appropriate to Liu Mou purchased artist itinerary information is defined as a sensitive personal information of the citizens of the track, from the "characterization" to be fundamentally rejected, in order to achieve the "bottom of the cauldron" effect. The effect of the "kettle".
Second, combined with the evidence in the case, from the deduction of illegally obtained information on the number of efforts.
According to the provisions of the above laws and judicial interpretations, the number of items of information about illegal access to personal information of citizens in violation of the crime and non-crime as well as the range of sentencing, so Liu's illegal access to information "quantitative" is also crucial. The defense carefully analyzed the evidence in the case, and pointed out through partial enumeration that the information that could not judge the artist's itinerary and the information that was passively received after Liu proposed not to renew the subscription should be deducted. At the same time, through the enumeration of the above way to question the whole allegation, from the "quantitative" on the realization of the "second best" effect
Thirdly, it is from the perspective of the legislative principle of the protection of citizens' personal information and the social harm of the case, to carry out the legal reasoning.
The main reason why the criminal law sets a lower threshold for the criminalization of sensitive information such as itinerary track and accommodation, communication, transaction, etc., is that the above information involves the legal interests of persons and property, and illegal access to such information not only violates the rights and interests of personal information, but also may affect the safety of persons and property. However, according to the principle of modesty of criminal law, the scope of sensitive personal information shall be appropriately limited in criminal judicial practice. Defenders in the above legal interpretation on the basis of the actual starting point from the case, that Liu Mou buy information only for stargazing, pure motives, not strong understanding of the illegality of the subjective malignancy is small, and the time is short, the number of times, and did not cause the victim's reaction to the consequences of tangible damage to the social harm caused by the perspective of the small to explain, with the best possible meticulous analysis of the judicial authorities to give lenient treatment.
The fourth is to use all the elements in favor of the suspect, to achieve the maximum effect.
In order to achieve the best defense effect, the defenders actively collect evidence of Liu's character, combined with the reality of his consistent good performance, the Department of the first incidental offender, actively cooperate with the investigation of the authorities after the crime, and has signed a plea of guilty and acceptance of punishment commitment to the criminal law from the point of view of the educational function of the procuratorate to give its maximum leniency.
Case results:
After the procuratorial authorities reviewed and returned for supplementary investigation, it was considered that, due to the lack of specific identifying information of the trip information in this case, as well as the inability to determine the source of the information and the inability to determine that it was non-public information, the existing evidence was insufficient to confirm that the non-prosecuted person Liu constituted the crime of infringing on the personal information of the citizens, and that the public security authorities found that the facts of the crime were not clear and there was insufficient evidence to comply with the conditions of the prosecution. In accordance with the provisions of Article 175(4) of the Criminal Procedure Law of the People's Republic of China, it was decided not to prosecute Liu.
Case handling tips:
First, the defense strategy should be scientific and precise. Should be based on the specific circumstances of each case, reasonable establishment of innocence or misdemeanor defense strategy, accurate direction in order to implement effective defense.
Second, the defense should reflect the hierarchy and logic. Should focus on the key points, a full range of interpretation, while reflecting the hierarchy, a systematic multi-dimensional defense. Especially in the key focus of the dispute, more from the legislative principles and background to analyze and enhance the persuasive power.
Third, we should adhere to the principle that everything is in favor of the parties. Around the goal of defense, will be beneficial to the parties to use all the factors, in order to achieve a good defense effect.
Fourth, diligent communication. The defender should follow up according to the progress of the case and adjust the defense strategy at the right time.
Annotation:
1 Yu Haisong. Understanding and Application of Judicial Interpretation of the Crime of Infringing on Citizens' Personal Information [M]. Beijing: China Legal Press, 2018: 13, 15
2 According to the Interpretation, illegally obtaining more than 500 pieces of citizens' personal information such as accommodation, communication, transaction information and other information that may affect personal and property safety is considered a serious circumstance, and more than 5,000 pieces is considered a particularly serious circumstance; illegally obtaining more than 5,000 pieces of citizens' personal information other than trip tracks and the abovementioned personal information that may affect personal and property safety is considered a serious circumstance, and more than 50,000 pieces is considered a particularly serious circumstance.
