大数据时代个人征信信息的刑法保护机制创新

The Innovation of Criminal Law Protection Mechanism for Personal Credit Information in the Era of Big Data

刑法中的个人征信信息以电子或其他方式记录为形式要素,以识别性为实质要素。亟须细化前置法中非法或合法向他人出售或提供个人信息的具体规则;若某种个人征信信息属于完全不真实或公开的类型,就无必要以刑法予以保护;非法利用他人征信信息实施下游犯罪无法评价的法益侵害行为已呈现类型化与典型化,应以刑法给予妥当规制。应将构建有效合规计划作为不起诉或量刑优待的考量依据,应考虑财产及人身权益在量刑中的附带作用,对罚金刑的适用须考量财产能力、犯罪严重程度及预防必要性。

In criminal law,personal credit information is recorded electronically or in other ways as a formal element,and identification as a substantive element.It is imperative to refine the specific rules of the pre-law on the illegal or lawful sale or provision of personal information to others;if some personal credit information is completely untrue or open,there is no need to protect it with criminal law.Illegal use of other people’s credit information to carry out downstream crimes that cannot be assessed against legal interests has become typified and typical,and should be properly regulated by criminal law.The establishment of effective compliance plan should be considered as the basis of non-prosecution or sentencing preferential treatment,the incidental role of property and personal rights should be considered in sentencing,and the application of fine should consider property capacity,crime severity and the necessity of prevention.