论数据违法的行刑界分

On the jurisdictional differentiation between administrative offenses and criminal offenses in data violation

数据是新质生产力的核心要素之一,以《数据安全法》为代表的行政法已经对数据违法行为给予足够关注,但是,刑法中关于数据犯罪的规范尚未及时更新。由此导致数据犯罪领域为追求处罚统一性,简单以行政违法性代替了刑事违法性。数据犯罪是纯粹的行政犯,数据违法行为的行刑界分需要结合纯粹行政犯的“质与量差异综合理论”来具体判断。在“质”上,要以数据犯罪的法益为核心,结合“法益关联性理论”划定罪与非罪的界限。在“量”上,要以比例原则为标准来权衡“量”的多少,辅助判断行政违法与刑事犯罪之间的界限;同时,即使是已经纳入数据犯罪的范畴,“量的过于轻微”作为数据违法中行刑界分的重要因素,也应当作为不法层面的阻却事由。

Data is one of the core elements of the new productive forces.Administrative law,represented by the Data Security Law,has already paid sufficient attention to data illegal acts.However,the regulation of data crimes in criminal law has not been updated in a timely manner.This has led to a situation in the field of data crimes where,in pursuit of uniformity in punishment,administrative illegality is simply substituted for criminal illegality.Data crime is a type of purely administrative crime,and the jurisdictional differentiation of data illegal acts needs to be specifically judged in conjunction with the Theory of Comprehensive Differences in Quality and Quantity of purely administrative crimes.In terms of“quality”,the core of data crime’s legal interests should be taken into account,and the boundary between crime and non-crime should be delineated in conjunction with the Theory of Legal Interest Relevance.In terms of“quantity,”the principle of proportionality should be used to weigh the amount of“quantity”and assist in judging the boundary between administrative illegality and criminal offenses.At the same time,even if it is already included in the category of data crimes,the Excessive Triviality of Quantity should also be considered as an important factor in the jurisdictional differentiation of data illegal acts,and it should serve as a ground for preventing unlawful aspects.