侵犯公民个人信息罪以“情节严重”为定罪要件要素,对于情节严重的认定引发了刑法学界的争论与分歧。面对个人信息三级分类法的制度缺陷、以“组”代“条”的计算单位争议、批量信息举证与真伪核查的处理难题,本文通过剖析相关法律条文和司法解释,搜寻侵犯公民个人信息罪的现实案例,对调整信息三级分类规范,明确信息数量计算“识别性”标准及统一批量信息推定规则和信息处理模式等破解思路进行了集中阐述,以期进一步改善“情节严重”认定混乱的司法现状。The crime of infringing personal information of citizens takes “severe circumstances” as an element of conviction, and the determination of severe circumstances has triggered debates and disagreements in the criminal law academic circle. In the face of the systematic defects of the three-level classification of personal information, the controversy over the calculation unit of “group” instead of “article”, and the difficulties in handling the proof and authenticity verification of bulk information, this paper, through analyzing relevant legal provisions and judicial interpretations, searches for real cases of crimes against citizens’ personal information, and focuses on such cracking ideas as adjusting the norms of three-level classification of information, clarifying the standard of “identifiability” for calculating the quantity of information, and unifying the rules of presumption of bulk information and the mode of information processing, with a view to improving the confusing judicial the current situation.
刑法观的讨论持续数年,但仍未有定论,面临构建中国自主的刑法学知识体系重任,必须要找出适合中国国情、能够指导中国实践的刑法观。为此,以结合毛泽东思想与海德格尔存在论的“实践存在论”为哲学基础,以“此在”、“存在”、“实践”的链接为契机,捕捉到在当前时代背景下最有利的刑法观——结合型刑法观,即对积极、消极刑法观的有机结合,在法律编纂之初遵守刑法的谦抑性原则,在法定刑区间的界定中做到罪刑相适应,在司法实践中宽严相济。以结合型刑法观指导刑事法治的发展,才能更好地保护法益。The discussion on the concept of criminal law has been going on for several years, but no conclusion has been reached yet. Faced with the important task of constructing China’s independent knowledge system of criminal law, it is necessary to find out a concept of criminal law that is suitable for China’s national conditions and capable of guiding China’s practice. To this end, we take “practical existentialism”, which combines Mao Zedong Thought and ontology by Heidegger, as the philosophical foundation, and the linkage of “here”, “existence” and “practice” as the opportunity. The link between “Dasein”, “Existenz” and “practice” is an opportunity to capture the most favorable view of criminal law in the current context—a combined view of criminal law, an organic combination of positive and negative views of criminal law, observing the principle of modesty in criminal law at the outset of the law’s codification, making the crime and punishment fit the crime in defining the legal penalty range, and giving leniency and severity equal treatment in the practice of justice. In judicial practice, leniency and severity are in harmony. The combined criminal law view guides the development of the rule of law in order to better protect the interests of the law.