collateral to criminal proceedings with the People's Court of Fengxian District, Shanghai Municipality for the
damage to public interests.
The defendant, Li Kaixiang, had no objection to the basic criminal facts and determination of the nature
charged in the prosecution, and voluntarily pleaded guilty to accept his/her punishment.
The defender suggested that the defendant, Li Kaixiang, should be given a lighter punishment and requested
the court to suspend his/her sentence based on such defense opinions as the defendant, Li Kaixiang's first
offense, truthful confession of the crime after appearance before the court and willingness to plead guilty to
accept his/her punishment. The defender also argued that the procuratorial authority did not verify the
authenticity of more than 81 million pieces of data involved in the case.
Decision
On August 23, 2021, the People's Court of Fengxian District, Shanghai Municipality made the criminal
judgment [2021] Hu 0120 Xing Chu No.828, holding that the defendant, Li Kaixiang, should be sentenced to
fixed-term imprisonment of three years for the crime of infringing citizens' personal information, granted
suspension of sentence for three years, and fined CNY10,000; the guilty tools seized on record should be
confiscated; Li Kaixiang should make a public apology for his/her infringement of citizens' personal
information in national news media, delete the "face score detection" software and related codes, delete the
related photos stored on the Tencent Cloud web disk, delete the relevant citizens' personal information
stored on the "MEGA" web disk, and cancel the QQ number used for infringement. After the judgment of the
first instance, the defendant raised no protest or appeal; the judgment has taken effect.
Reasons for the Decision
The effective judgment of the court held that the focus of the dispute in this case was whether the "face
information" stolen by the "face score detection" software involved in this case falls within "citizens' personal
information" under the Criminal Law. The court believed after the trial that "face information" belongs to
citizens' personal information stipulated in Article 253-1 of the Criminal Law; the use of the "face score
detection" hacker software to steal software users' "face information" and other citizens' personal
information belongs to the behavior of "illegally obtaining citizens' personal information by theft or
otherwise" and should be punished in accordance with the law. The main reasons are as follows: firstly, "face
information" and other clearly listed types of personal information have obvious "identifiable"
characteristics. The Interpretations of the Supreme People's Court and the Supreme People's Procuratorate
on Several Issues concerning the Application of Law in the Handling of Criminal Cases Involving Infringement
of Citizens' Personal Information (the "Interpretations") list the types of citizens' personal information;
although "face information" is not listed separately, other forms of personal information are allowed to be
identified other than those listed in accordance with the law. The definition and enumeration of citizens'
personal information in the Interpretations are consistent with the identification standard for citizens'
personal information in the Civil Code and other legal provisions, that is, "identifiability" is the identification
standard for personal information, emphasizing the possibility of direct or indirect identification between the
information and the subject of information. "Face information" belongs to bio-metric information that
cannot be modified and is unique. The face corresponds to the natural person one to one. Without
combining other information, the face can be used to directly identify a specific natural person. Therefore,
"face information" is highly "identifiable". Secondly, the identification of "face information" as citizens'
personal information follows the principle of unity of law and order. The Civil Law and other advanced laws
protect "facial information" as citizens' personal information. Article 1,034 of the Civil Code stipulates the
definition and specific types of personal information; the Personal Information Protection Law further
includes "facial information" in the protection category of personal information. If the infringement of "facial
information" constitutes an infringement of the personality rights and interests of natural persons, the actor
shall bear the corresponding civil liability or administrative or criminal liability. Thirdly, the use of the "face
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