[Abstract] the right of privacy is one of the most important emerging of basic human rights in modern society, while Germany is the legislation to protect the privacy of advanced countries in the continental law system, and has the right of privacy of criminal law protection system of meticulous. Research on the criminal law protection of privacy concerns in Germany, the criminal legislation development, will provide a theoretical reference for the protection of criminal law Chinese privacy legislation.
[keyword] Germany; privacy; protection of criminal law
 
   The criminal law protection of the right of privacy in the circles of criminal law is a hot academic problems, especially when the privacy interests from serious violations of privacy, the value of a sudden become the occasion, how to protect the privacy of citizens has become an important issue of common concern of all countries and regions of criminal law. German criminal law with its precision is rigorous, the perfect embodiment of a criminal law "clear, rigorous logic" of the spirit, in the criminal law protection of privacy, also show the characteristics of the right of privacy is highly valued and meticulous care of criminal law. Packing clause German privacy criminal law is meticulous and protection covers broad characteristics, is particularly worth Chinese criminal law seriously and learn from.

Produce and development, the right of privacy

"privacy is tort law and American constitution on a. In tort, the right of privacy is one kind not to give such behavior of mental injury right; these behaviors to the victim's private life to the public exposure or by insulting and harass others quiet make him in a state of extreme tension." {1}1890 America Boston's famous lawyer Warren and American Harvard University law school professor Louis as D. Brandeis cooperative writing "privacy" ( The Right to Privacy) published in the "Harvard Law Review". This paper points out: "political, social and economic changes continuously put forward new requirements that right, and the common law of the development of youth in responding to the needs of the society." {2} two people called for the society for the protection of privacy and respect, advocate everyone has "no others rights", resulting in the human law history first mentioned the concept of privacy.

This paper is published in the American rapidly stimulate right of privacy theory and related legal system. Experienced nearly a century of development, USA gradually built up a complete set of privacy protection system. Now, the privacy system America has spread out the borders, the right of privacy as a legal right has been widely recognized by countries around the world and attach great importance to. Not only countries now basically established the legal system of the protection of privacy relatively complete, at the same time, "the Universal Declaration of human rights", "economic, social, and cultural rights and the International Covenant", "International Covenant on Civil and political rights" and other international documents on human rights to privacy or private life secret rights confirmation and protection. Such as the "Universal Declaration of human rights" Twelfth clearly pointed out: "anyone's privacy, family, home and correspondence shall be subjected to arbitrary interference, his honour could not be attack. Everyone has the right to enjoy the protection of the law against such interference, or attack." Another important international human rights norms "Seventeenth International Convention on Civil and political rights" also includes provisions on the right of privacy ": (1) any person's private life, family, home or correspondence shall be subjected to arbitrary or unlawful interference, his honour could not be illegal attack. (2) everyone to enjoy the protection of the law, in order to avoid such interference or attack." This also marks the privacy which generated and developed from the domestic law on the right to the protection (including judicial protection of concrete) internationalization, privacy legal protection system of formal establishment of global.

Two, the German law of the protection of the right of privacy

countries or regions of the legal protection of privacy should be by the constitution, civil law, administrative law and criminal law have formed a complete structure, internal coordination of legal system to bear, the German privacy legal protection is not naturally.

Germany is typical continental law countries, deeply engraved in the German culture in the Christian tradition and Kant's concept of dignity, to Germany for basic human rights fully. This strong sense of human dignity, will naturally affect Germany attaches great importance to the basic human right of privacy. As USA scholar Richard Spinello said: "the core EU countries such as Germany and Sweden has apparently taken privacy than American more active way. Part of the reason the philosophy behind different is, the EU believes that privacy is a data protection concept, that is the basis of the basic human rights of privacy. There is also a long-term hypothesis, namely the state must bear the obligation of protecting private information." {3} therefore, the German unique historical and social culture background, decided the will as a basic human right of privacy concern.

but still need to point out is, any right of the emergence and consolidation are not accomplish at one stroke, the right of privacy in the German formation and confirmation is also repeatedly by. In the civil law went into effect in 1900 in Germany, does not expressly provides privacy, even not been recognized. "German Civil Code" 823rd paragraph first: "who intentionally or negligently misappropriates another life, body, health, freedom, property or other rights of the victim compensation, negative obligation." After a long period, majority of German jurist thinks, this one on the "individual rights" list is exhaustive, so refuse to protect the right of reputation and the right of privacy, unless the victim can prove infringement acts in violation of the second paragraph of this article first "to protect others in violation of legal purpose, negative the same duties". But the same time cases are basically confirmed that the {4} view above the German jurist. After the Second World War, there has been a lot of changes. During the Second World War, the Nazi regime disregard for human rights, human rights violations tyranny, not only makes the protective provisions relating to human rights in Weimar in the constitution into effect, encourage whistleblowing provisions draw further apart more spirit and the right of privacy. Postwar Germany as a warning for the future, realize "expose personal privacy, not only constitutes a violation of human dignity and the free development of personality, also hinder the protection of personal privacy, therefore, has been recognized as" the constitution of Germany after the war {5}.

Germany's constitutional right to privacy that still path through the general personality right [1], German Federal Supreme Court in 1959 general free development in accordance with the provisions of the new constitution of first human dignity, second personal right to confirm personal rights belonging to the "German Civil Code" article 823rd paragraph first protection of the other rights, i.e. the so-called court case developed "general personality right, the right of reputation and the right of privacy" was absolutely the right to treat. "The German constitution" article tenth for the freedom of communication and thirteenth of the freedom of residence also from their side of privacy protection. While the German Civil Law on privacy, especially the privacy privacy mainly adopts the case mode of protection. In 1954 the German Federal Supreme Court had ruled, that the dignity, autonomy, privacy right is the "German Civil Code" section 823rd rights, non material caused by the violation of such rights to compensate the loss. The relevant case court, Germany on the limits of privacy that mainly in personal life field, as the German Federal Supreme Court said in its ruling in June 5, 1973, announced a past crime (parties) name, portrait will infringe the relevant personnel's personality privacy {7}.

not only so, height due to privacy rights seriously, Germany has enacted special legislation to protect citizens. Such as 1977's "the Federal Data Protection Act", to prevent the invasion of privacy interests through personal data. Another important law is the G-10 bill, the secret of its communication to some areas of the necessary restrictions, 2001 revision bill requires communication service providers to provide convenience for the law enforcement departments to monitor data and voice line. The "1996 telecommunications carrier data protection act", "information and communication service method" are also different extent contains some privacy provisions, and provide privacy laws to protect.

Three, the German criminal legislation on privacy protection [2]

Criminal law protection of privacy infringement in Germany mainly German criminal law "the fifteenth chapter" the private lives and secrets, specifically:

(a) 202nd speech Secrets Infringement

provisions of the crime: 1 illegal for any of the following acts, less than 3 years of freedom penalty or penalty: (1) the others not to public statements to the recording, or (2) the use of such recordings or make third get. 2 illegal for any of the following acts, and the same penalty: (1) Mike He has no right to know others not to talk in public, or (2) of the first recording first paragraph second paragraph first paragraph or eavesdropping speech told third people. In the latter case, only when told third people the eavesdropping comments caused to others rights infringement, was punished. Let third people the eavesdropping of speech is to maintain the major public, no illegal act. Infringement of 3 civil servants or personnel engaged in special duties to others speech secret (first and second), and 5 years of freedom penalty or penalty. 4 prisoners attempted crime, should also be punished. The 5 principals or accomplices for recorder and microphone crime was confiscated. The applicable provisions of a [3] seventy-fourth.

(two) 202nd against the crime of communication

provisions of the crime: 1 illegal for one of the following acts, such as behavior is not in accordance with article 206th of the punishment, less than 1 years of freedom penalty or penalty: (1) illegally open other people's letters or other documents sealed, or (2) is not removed but by technical means illegal ascertain such document content. 2 illegally open other specially envelope to know the contents of the file, penalties and paragraph first of the same. 3 other pictures, as the first and second paragraphs of this sense of the file.

(three) 202nd a detected data crime

provisions of the crime: 1 illegal for themselves or others know does not belong to own the special security information, department 3 years free punishment or. The 2 paragraph first of the data, but the method by electronic or other cannot be directly extracted from the storage or transmission of data.

(four) 203rd infringement of Secrets

provisions of the crime: identity and was told that because of the following 1 or other people's secrets, especially private life secret or business, commercial secret, not authorized to disclose, less than 1 years of freedom penalty or penalty: (1) physicians, dentists, pharmacists, veterinarians or other subject to the provisions of the state training can begin practicing doctors and nurses; (2) national recognition certificate examination qualified occupation psychologist; (3) a lawyer, for patent lawyers, notaries, proceedings in the counsel, accountants, auditors, tax consulting, tax agent or firm of lawyers, patent Proxy Companies, economic review company book review, company or tax Consultants Co organ or its members; (4) the marital problems, education and Youth Advisory, as well as by the official or body, other organizations or the law on the foundation of consulting admit and establishment members or consultants, (4) A. avoid and members or overcome the conflict of third pregnant and the provisions of the eighth recognized consultant; (5) the national recognition of social workers and social education personnel; or (6) private disease, accident or life insurance agency Member, or private medical institute of accountants. 2 because of the following kinds of identity and been told or that other people's secrets, especially private life secret or business, commercial secret, unauthorized to leak, and paragraph first of the same penalty: (1) civil servants; (2) engaged in public service; (3) according to the position of law to perform a task or authority personnel; (4) member of the legislature or the state legislature the Commission, or member of the legislature identity does not have other committees personnel or the committee to assist the personnel; or (5) shall perform its job loyalty experts appointed by the public administrative functions and the individual data execute people or things about others as the secret of; because of public administration and other authorities or other bodies of the individual data delivery, and the law is not prohibited, the provisions do not apply to. The other 3 lawyers firm as first the third paragraph of the law; for the first and first row personnel service or assist in the work, with special identity as the first paragraph. Aware of the dead or the relics from the secret and confidential, as the first and the first sentence of paragraph and second provisions of the specific identity of people. 4 people in the relationship between man dies, not publicly authorized its secret, provisions of the first paragraph shall apply to the third paragraph. 5 human behavior get paid or intent to make themselves or others to profit, or damage the interests of others and open the secret, less than 2 years of freedom penalty or penalty.

(five) 204th the use of other people's secrets

provisions of the crime: 1 according to the provisions of article 203rd shall be kept confidential for others, unauthorized use of the secret of others, especially the enterprise or business secret, less than 2 years of freedom penalty or. The provisions of the fourth paragraph of the corresponding application of 203rd 2.

in addition, 205th rules: 1 201st first and second make money and 202nd to 204th in the crime, to tell you. 2 death to the victim, tell right according to the seventy-seventh paragraph second transferred to the relatives of [4]. This provision does not apply to the case of 202nd a. Secret does not belong to the scope of private life, tell right according to the 203rd and 204th by his heirs. People make the 203rd and 204th open or using other secret sin in the relationship after the death, the application of this paragraph first and second regulations.

(six) 206th postal or telecommunications Secrets Infringement

provisions of the crime: 1 unauthorized, as engaged in postal or telecommunication business enterprise owners or employees, and was informed that the postal or telecommunications belongs to the secret of the fact that other, less than 5 years of freedom penalty or. All persons or employees 2 as mentioned in the preceding first paragraphs enterprises without authorization, for one of the following acts, and the same penalty: (1) open others. Such business mailing the sealed mail, or is not removed but by technical means to know the content; (2) to detain others. Thus, enterprise post mail; (3) the first or the second or second the behavior to be approved or promotion. 3 the following persons guilty of such crimes, apply the first and second paragraphs of penalties: (1) to supervise the business of the first paragraph of the enterprise; (2) by such enterprises commissioned or authorized, engaged in postal and telecom services; (3) required to produce the business of such business equipment or participate in the working people. 4 non engaged in postal and telecom services personnel, authorized or unauthorized aware of postal or telecommunications secret, unauthorized will inform the others, and 2 years of freedom penalty or penalty. Content is the post secret details 5 postal transport specific people and messages; telecommunications contents and details, especially if someone call for participation in telecommunications, belong to the secret. Telecom secrets and not connected with.

(seven) 123rd and 124 crime of housebreaking

In the seventh chapter the crime against public order crime, the 123rd rules: 1 the housebreaking, place of business or land, or closed for public affairs or public transport, or without permission in the residence, the owner is not left, less than 1 years of freedom penalty or penalty. 2 the behavior of non prosecution told not.

while the 124th article is serious illegal house breaking behavior set punishment heavier terms, this provision: public gathering, intentional object implementation to others or violence, housebreaking, place of business or land, or for public affairs or traffic closed places, all participating violations of the per capita less than 2 years of freedom penalty or penalty.

Four, to comment on the German criminal law protection of privacy

grand make clear written, clear concept of law has always been the continental law system countries lawmakers always enjoy it. As early as in Justinian codified "Corpus Juris Civilis", "concept is clear, clear, rigorous logic" is a civil law jurists diligently pursuit. As the continental law system of Germany on behalf of the state, since ancient times will make excellent perfect code as a jurist lifetime management, and look at the "German penal code" privacy protection clause, will touch the wisdom and talent flow from the law between the German jurists filling. Criminal law protection of privacy clause is only a corner of many criminal law of Germany, but its exquisite and delicate enough to a loud shouts of applause. Specifically, criminal law protection of privacy and Germany have the following features:

(a) criminal law protection of privacy in terms of highly concentrated, to highlight the importance of the private life

in German criminal law, relates to protect the privacy of the charges with a total of 7, but 6 were chapter against the secret life and concentrated in the fifteenth crimes, and the 6 is all about protecting life and construction of private citizens, which highlight the height of the legislation on privacy interests seriously, which not only can understand provide great judges apply the law and to promote the general public of privacy right of criminal law criminal law is convenient, can also enhance privacy protection general deterrence.

(two) the scope of protection of privacy right of criminal law covers a wide

German privacy law although only 7 charges, but because of its excellent legislative skills, language inclusive, the right of criminal law the privacy protection antenna has extended to the speech, communication, personal information, such as electromagnetic data private aspects of life, has the vast will practice multiple most serious violations of the privacy act culvert the. Broad content, far more than belong to the continental law system is another representative countries japan.

(three) the right of privacy of corporate crime set

A attract sb.'s attention of German criminal law protection of privacy, the infringement of Secrets first paragraph third paragraph firm of lawyers, patent Proxy Companies, economic review, book review, company or tax Consultants Co can become this crime is a crime in the 203rd body, so in fact the legal person. Is a rare thing in the criminal law of continental law countries unit crime, and privacy crime belong to the continental law system in our country Macao and Taiwan area, Japan has no stipulations on the right of privacy unit. But in practice, there is selling dispersal units directly organize or participate in personal behavior, so the German criminal law of this provision also have a definite object in view, should also be an innovation belongs to the criminal law.

(four) the provisions of the criminal law meticulous meticulous

German privacy criminal law design, careful, have very strong. Such as Germany article 202nd of the criminal law against communications secrets will purposely use technical measures to ascertain the file contents of illegal crime, such as the third paragraph of this article, the pictures with the file as the same, which can effectively plug the loopholes in the law [5]. Magnetic recording moreover Germany article 202nd of the criminal law crime of a detected data required can be widely covered records to electronic, magnetic or other cannot take the perceived directly know way made. Electromagnetic records belonging to the "text book" category, including online games in the virtual "treasures", electronic mail, QQ number, network property, credit card information can be included, which greatly improved the ability to adapt to the crime.

(five) the diversification of punishment

German crime to take a variety of criminal law on privacy means of punishment, punishment in addition to the usual free punishment and penalty, specifically for the use of recording equipment and tap against freedom of speech behavior, in the 210th section fifth for recording the provisions of criminal behavior and eavesdropping device confiscated on physical security measures to eliminate the violation of freedom of speech, of material.

protection has more German privacy law despite the advantages, but also need to point out, the German criminal law protection of privacy specification is also the shortcomings to some. Like 203rd lines of infringement of privacy by enumerating way, trying to criminal acts to divulge the secret way of serious violations of the privacy of others all this snare in practice. In fact, although the content cumbersome, the subject of crime from doctors, lawyers, consultants, staff until the national civil servants and the Committee of experts, but still missing such as network marketing, logistics enterprises, public services, real estate companies, consulting company and many other possible through duty behavior control personal information and selling of the situation. This omission is also concerned with the legislative ideas inherent in the continental law system, the law system usually rack one's brains make the law to complete in order to apply to the facts, clear without any explanation, tight logic without any conflict, so that the code can become an automatic process. But in fact, due to the characteristics of privacy right boundary uncertainty as well as new rights are constantly development change, no matter how legislators effort, also difficult to catch all in one draft. Therefore, as the 203rd are revealed, such efforts often makes the criminal law because of too numerous and become stiff, but there will be more specific and detailed but the embarrassing phenomenon loopholes appear one after another [6]. In addition, criminal law protection of privacy and Germany also lack of sensitivity of the times, since 2002 the last modified, has emerged a large number of illegal collection of citizen privacy information, illegal, illegal candid camera monitoring equipment is set to peep others privacy seriously violated the privacy of the individual behavior in social life in Germany, but the German criminal law, but turn a deaf ear to slow reaction therefore, the adverse situation of judicial departments to be beyond one's grasp.
 
Notes.
[1] the general personality right is in Germany in twentieth Century 50 by the Federal Supreme Court judicial precedents, quoted the German Basic Law "by" first, 2 and the development of a framework of "rights", its outstanding characteristic is "uncertainty", which act in violation of the general personality right, whether and how to provide relief by the judge according to the case of judgment, the specific content to be the real life filling, but the judges (not law) are discretionary, according to the specific case. We can see [Germany] Dieter Medicus: "Germany civil law", Law Press, 2000 edition, page 107th; and Zhu Qingyu: "non ethical rights: objective rights theory and its fate in the China", set "comparative study" in 2001 third. Therefore, the general personality right is a kind of advancing with the openness of the rights, and the connotation of right of privacy and its boundary is always in a state of continuous development, and nurtured a large number of special personality right, consistent with the general right of personality characteristics of uncertainty and openness.
[2] this paper quoted the German criminal law provisions, are from the "German penal code", Xu Jiusheng, Zhuang Jinghua, Chinese legal Press 2000 edition. To save space below not enumerate.
[3] seventy-fourth a means the expansion condition confiscated, provides for the confiscation of 74 conditions outside of the supplementary confiscated, namely something though not the principal or the accomplice of all, but at least the rash and the matter is as a crime or preparatory crime tool, or become the object of crime; and knowing that the thing may be confiscated not made.
The second paragraph of the content of [4] seventy-seventh: death to the victim, tell the right to transfer to their spouses or children. The victim has no spouse have no children, or their spouses and children tell period expires before death, tell right transfer to their parents. The parents were told before the expiry of the death, tell right transfer to their brothers and sisters and grandchildren. If a family involved in crime, can not enjoy such rights to tell right transfer. As to prosecute crimes against the wishes of the victim, not tell right transfer.
The legal loophole [5] similar also exists in the criminal law protection of privacy in the specification of Japan, such as Japanese criminal law 133rd open letters, open other people's letters sealed, place below 1 years or a fine of 200000 yen. Obviously, the use of modern imaging detection technology, not shrink wrap and ascertain the letters and personal
The [6] enumeration legislation mode is widely used in the German criminal law, such as "the German penal code" 250th aggravated robbery also adopted this legislation mode. For the list of legislative model, the German criminal law scholars have criticized a lot, think "it is with great legal stability advantages, but also caused cautious formality and results - out of touch with the real life to spend big and small harvest". We can see (DE) Yatu Kauffman: "by analogy with" essence "", translated by Wu Congzhou, the Taiwan academic culture Co. Ltd. 1999 edition, page 117th.
Reference.
{1} (United States) Richard A. Sipineiluo. Century Ethics: ethical aspects of information technology [M]. translated by Liu Gang. Beijing: Central Compilation and Translation Press, 1999 1
{2}Samuel D. D. Brandeis The WarrenLouis, Rightto Privacy, Harvard Law Review, Vol. 4, No. 5 (Winter, 1890).193
{3}Richard Spinello, Herman Tavani, Introduction toChapter Four: Privacy in Cyberspace, The MITPress, 1997, p.219
{4} Wang Liming, Yang Lixin. The personality right and the news tort [M]. Beijing: Chinese Fangzheng Publishing House, 1995.404
{5] Weng Yuesheng. Administrative law and modern country under the rule of law [M]. Taipei: self copy, 1985.237-238
{6}{7} [M]. Zhang Xinbao. Legal protection of the right of privacy: Beijing people press.2004. 39, 40 -41

Author unit: Henan Administrative Cadre Institute of politics and law.
Source: "Journal of Henan Administrative Cadre Institute of politics and law" in 2009 sixth.