| Since the ancient times, personal information has been collected, processed, used andtransmitted in society's different stratification. Constrained by technological factor, at thattime, so long as we carried essential control in physics and personnel, we could avoidpersonal information from illegal collection, processing, usage or transmission, and thenprotect the legitimate rights and interests of the main information subject. Therefore, in thevery long time, the protection of personal information is not the problem. Since the 60's ofthe last century, along with computers' widespread use and the approach of the informationsociety, computers' formidable information processing function has accelerated thedevelopment of information storage, analysis, duplication, and transmission, which firstcauses the fear of having personal information abused. And besides, thegradually-increasing demand for protecting personal information successively promptswestern countries to enact laws to weaken the impact in the 70's of last century. Until the90's, the internet technology has further developed. Therefore, the quick informationprocessing has combined with the recent communications technology and multimediatechnology. In addition, personal information presents the multiplication, whosetransmission and utilization has also conveniently permeated into everywhere. All of thesehave brought a stronger threat to personal information security. For that reason, more andmore international organizations and authorities give high concentrations on personalinformation protection. Statistics indicates that, the number of the countries and regionswhich have formulated special laws on personal information protection so far has alreadysurpassed 50.As a result of various reasons such as the social concept, the science and technologydevelopment, the legislation plan and so on, our country has not given enough attention topersonal information protection for a very long period. Up tol now, we haven't had a specialformulation of laws about it. Also, the protection system is quite backward overall. Becauseof this, while the personal information is collected and used to enhance government'sefficiency, and to promote the development of market economy, it encounters to be illegallycollected, maliciously used, and even disturbs people's peaceful life as well as the normalsocial order, which has become a potential danger and a common phenomenon in ourcountry. Under such circumstances, the national correlated institution and the legalscientific circles have started to discuss to see whether it is feasible or not to draft law on personal information protection. At present, mandated by information department,Professor Zhou Hanhua of Social Science Institute has completed the draft (expertsuggesting manuscript). Moreover, in recent years, not only civil law's draft announced bythe legislature, but also the manuscript suggested by experts of the civil law, have givenmore or less focus on the problems of personal information protection. However, ourresearch about it now is still in its beginning stages. In the concrete system aspect, ourmajority research results still remain at the introduction of overseas personal informationprotection system, but lack thorough analysis of its hidden legislation reason and theproblems about constructing logic, not to say we lack deep and careful discussion of thetheoretical basis and the legislation idea. Therefore, this article attempts to conduct theresearch of the above questions from the civil law angle of view, hoping to help with thelegislation of the personal information protection. Besides the introductory remarks andpostscript, there are altogether five chapters.IntroductionIn the introductory remarks, the author pointed out that, the traditional law system hasbeen unable to deal with the personal information crisis in the information era, and weshould embark from the civil law methodology angle, and thoroughly study the relatedproblem about the personal information protection. In this information epoch, personalinformation frequently faces crisis, humanity therefore all lives under "the informationshadow". With "the information shadow" proliferating gradually, normal commercial order,social stability and national security as a result are confronting a stem test. As for this point,now the law must play a positive role in solving this problem, but for the rapiddevelopment of the modern information science and technology, there turns out somesubjects, in which legal system is unable to find solutions through an advanced, gradual,adjustable and reasonable way. The individual collection of information in the cyberspace,the transmission in the commercial activity, the publication of the personal sensitiveinformation, and the public organization's use of it are all typical models of the subject.How to solve this kind of subject relates to the construction of the harmonious informationsociety and we need thoroughly pondering, full discussions, and then promptly propose thecountermeasures. The formulation of special personal information protection methodtherefore is raised on the agenda. The introductory remarks further introduce this article'sresearching channels and ways, that is, from the civil law angle of view, it syntheticallyutilizes the history inspection method, the comparison research method, the law sociology method, the law economic analysis method, the concept of legal science method, the realdiagnosis and analysis method, to launch the discussion of personal information protection,to discover personal information protection based on the personality power and the propertyrights, to discuss the idea of the comparison method, to analyze the specific system, and todemonstrate our country's construction of this system. Finally, in order to build the unifieddialogue platform, and lay foundation for concept unification of the article elaboration, theintroductory remarks have also confessed the relation of the concepts between personalinformation, personal data, personal material, and personal privacy. It holds the opinion thatthere is no necessity of strictly differing from one another, and they are allowed to bemutually interchangeable; although personal information and privacy have the similarity,but the difference also is mutually obvious, not suitably to be jumbled together.Partâ… In the first chapter, it unscrambles the personality power of personal informationprotection. This chapter first points out that, in this information society, there is an"existence of information" besides person's physical significance in existence, which hasthe practical influence on decoding the process from the personality power theory angle.There are altogether four sections in this chapter. In the first section, it posts the birth anddevelopment process from the view of historical evolution. It figures out that in the civillaw the evolution of personality power theory from neoteric to modern times is actually aprocess in which one's personality degree is unceasingly deepened and the scope of theprotection is gradually expanded. Also, personal information protection is factually anamazing law phenomenon which appears in the development course. Following this course,personal information rights have gradually developed as a specific personality powerprotected by civil law. This section has also referred the most recent development of theindividual information protection condition after "911". It indicates us to make suitabledisposal of the balance relations between personal information protection system andnational public security under the present international situation. Because of the differenceof the cultural background, people have various attitudes about the foundation problem.Some people believe that it derives from the privacy right theory, and some say it comesfrom the general personality power theory, but there are also some people hold the opinionthat personal information protection is essentially the protection to the self-determinationrights. Therefore, the second, third and fourth sections will launch the discussion separatelyon this three kinds of angles mentioned above and inquire comprehensively about the personality power foundation of personal information protection. With the non-essentialprinciple theory of the legal science, the second section analyzes the connotation and theextension of the concept of the privacy right. It proves that the premise of understandingright of privacy is to know the society cultural context from it. The privacy right ofAmerica is equal to the general personality right of the mainland legal system while theprivacy right of the mainland legal system is a specific personal right coordinated to thehealthy power, the reputation power, and the personal information power. Therefore, if wedeclare that personal information protection rationale lies in the right of privacy protection,we should mainly carry on the explanation from the view of American law. The thirdsection embarks on the general personality power theory and its the spiritual foundation,explains that we should take the general personality power as the basis, endow the messagebody with specific rights, thus to comprehensively and directly protect the personalitybenefit of the message body. Before the formulation of the individual informationprotection law, we can obtain the protection from the general personality rights. For thatreason, the general personality rights system is the historical foundation and theorycornerstone of the personal information protection. In the fourth section, the author takesthe autonomous theory in civil law as the base, points out that in the modern informationsociety, each one of us should safeguard our information to avoid the unlimited collection,storage, utilization, and transmission, and thus to ensure each person principally has theright to authorize the payment and usage. Also, personal information protection should beconverted from the traditional passive way to the positive method of "the informationself-determination right", and "the information domination".The second chapter is about the analysis of the property rights of the personalinformation protection. In the commercial movement, personal information has been widelyused as the goal for marketing. At the same time, the global exchange of information hasbecome a fatal factor to ensure the smooth global trade. This has initiated the thesis ofindividual information property. This chapter includes three segments. The first segmentstarts with the premise of personal information property theory. On the one hand, on thebasis of the theory proposition of "economic connotation of the specific personality rights",it puts forward the idea that personal information has the property attribute, which can befactually be utilized in trade, and at the same time, its collection and usage in many caseswould not be repelled by the social general ethics concept. On the other hand, with thefoundation of "the personality rights as the property rights", it means that personal information may be regarded as a kind of personality property under specific situation. Thesecond segment first summarizes the present situation of personal information property inthe real life, and then points out that it may be regarded for the direct commercializationand second development use. Although there are many scholars who hold the denialmanner to personal information property, the article insists on its multi- dimensional andrational reasons as following. Firstly, the economy development enables personalinformation to have virtual economic value in the market. And the grow of personalinformation property has its economic rationality. Secondly, as a result of owning theproperty attribute, a personal information right is clearly distinguished from the traditionalpersonality power. Not only it will not lower the personal dignity, it is also insteadadvantageous to the comprehensive protection of personality power. Thirdly, the standpointwhich believes that the present imperfect information transaction market will lead totransaction barrier actually cannot become the reasons to refute the personal informationproperty. On the contrary, this viewpoint could be treated as an amicable hint during theprocessing construction. Fourthly, although some scholars in US think individualinformation property would destroy the privacy rights system, there are also some expertsoppositional pointed out that while individual information performs through the privacyrights to get protection, it is not inevitably to repel it to be property and advance into themarket. Fifthly, it is unnecessary worry that personal information property will causeuncontrollable circulation. Once people thought the property rights included the restraint ofgrantee's transferring, the anxiety brought by individual information transaction will then bereduced. The third segment discusses the rules and regulations about individual informationproperty law. It analyzes two ways of legitimate operation patterns: top-down regulationsand bottom-to-top regulations. The former one refers standard through the legislationcentralism. This way restricts personal information transaction behavior through directstipulation market of its transaction content, time, way, and object. The latter then mainlythrough the endowment of the message body's property rights and initiates personalinformation transaction autonomy mechanism. These two kinds of methods have differencein status. So when the major factors are determined by market, we should do our best totake it from bottom-to-top regulations and when the opposite, pick the top-downregulations. At the same time, these two ways' independent significance is merely relative.Usually the reasonable circulations of the personal information need their harmony andcoordination. Partâ…¡The third chapter concerns personal information inspection with the comparisonmethod. The author firstly introduces some international correlated organizations, such asafter gathers organization, the United Nations, European Union, Asian and Pacific aftergathers organization, and some related countries such as US, Germany and Japan. It alsorefers the personal information protection legislation of the Taiwan and Hong Kong area,and furthermore summarizes the different contribution and characteristic. Thereupon, theauthor figures out that there exist two types of legislation pattern: "the European Unionpattern" and "the American pattern". European Union emphasizes on nation's leading rolein personal information protection. It formulated unified and strict protection law in highstandard which aims at the public department as well as the non-public department. Also, itestablishes special organization to carry on surveillance to personal information protectionand make strict limitation to the transnational circulation. When concerns individualinformation protection, the Europeans prefer to propose in the first place that personalinformation is closely related with the basic human rights. This kind of tendency constitutestheir "right foundation theory" on this issue. The US, however, makes a sharp contrast withEuropean Union. It formulates personal information protection law from the view of theinformation's collection, processing and usage. But it focuses more on self-disciplinedwhen speaking of the non-public department, only to build special law in certaindemanding areas. Although a lot of Americans agree that individual information and thehuman rights are interrelated, they believe it could be regarded as basic human rights andobtain pertinent protection only when threatened by the government. Whereas under thecommercial background, more attention should be put on the assignment justice and theexchange justice in personal information circulation process. This, forms "the justicefoundation theory". Through the comparative analysis between the European Union patternand the American pattern, the article points out that, personal information protectionmethod should simultaneously guarantee comprehensive protection and reasonablecirculation. The right foundation theory and the justice foundation theory, all have theirreasonable aspects as well as the supports from their respective values and social basis, sodoes the European country legislation leadership and the America's personal informationprotected mode produced by the theory above. The European pattern will benefit it to gainintegrative and comprehensive protection, while the US pattern can avail the freecirculation of information when there are fmite protections of it. Inevitably however, any sole emphasis on the patterns above is possibly to initiate errors and inaccuracy. TheEuropean pattern may hinder the information's normal circulation and fetter enterprise'sfreely development. On the other hand, the US pattern may cause partial enterprises toviolate individual information by fair means or foul. Hence, when we draft the legislationof personal information protection, we should give dual attention to the right foundationtheory and the justice foundation theory, thus to achieve the two's harmony and balance.Above all, on the matter of static protection problem, we should confirm individualinformation right as a specific personality power. Next, in the process of dynamiccirculation, we should deal with several cases such as the collection, processing, usage, theimpartiality of duty's allocation in the transmission, and the faimess of the transactionprocedure and exchange value.The fourth chapter analyzes personal information protection standard. With the aids ofthe concept legal science method, this part mainly deals with the adjustment scope, basicprinciple, rights of the message body and the damage compensation system. It illustratesthat, the so-called personal information, refers to natural person's name, gender, birthday,nationality, marital status, family condition, educational background, Work experience,health data, financial condition, and any other identifiable objective information. Below onpersonal information protection method's adjustment scope, this article holds the followingsix viewpoints. First, the scope of the legal adjustment should include information of bothautomatic disposal and non-automatic disposal. Second, the law should carry on specialregulation about sensitive information and special community's information. Third,artificial information should be distinguished qualifiedly from personal information, and itcan not be brought into the adjustment scope. But the artificial information which closelyconnected with specific natural person must be regarded as personal information. Fourth,because personal information simultaneously has the person attribute and the propertyattribute, it contains the protection of decedent information in the person attribute, whichcould be understood as the protection to the spiritual benefit of decedent's family, as well asthe protection of decedent information in the property attribute, which can be processedaccording to the inheritance law. Fifth, fetus' information should belong to the mother.Finally, personal information protection method should pay attention both to the correlatedbehavior of the public department and the non-public department. In the aspect of basicprinciple, this article approves of the induction of "Privacy Protection and Individual Data'sTransnational Circulation Guide", which passed by the after gathered organization in 1980. The content indicates that the basic principle includes the limit collection principle, theinformation quality principle, the specific goal principle, the restriction on usage principle,the safety control principle, the publication principle, the individual participation principle,and the responsibility principle. In the aspect of the rights of the message body, it mainlyfocuses on the consult power, the correction power, the sealing power, the deletion power,and the proceeds power. On the condition of the general approval of establishing thedomain of personal information protection, and considering the requirement of the clearconcept as well as the Chinese language custom, the author advocates that, personalinformation's collection, processing, usage, and transmission are several mutuallycompound concepts. Thus, personal information protection method ought to formulatecorresponding behavior standards according to this four kind of behaviors' character. In theaspect of legal liability of violating personal information, it mainly discusses the civilliability. It holds the opinion that we could use the rules that Taiwan area's "computerprocessed individual material protection method" for reference and use this in the damagecompensation. In conclusion, the author mentions that, the enacting of the personalinformation protection method should focus on the establishment of the implementmechanism, the inspector mechanism and the self-decupling mechanism of personalinformation protection.Partâ…¢In the fifth chapter, it talks about the legislation research of personal informationprotection. This chapter is the conclusion part of the article, including three parts. The firstpart outlines the present situation of our country's personal information protection. Onaccount of the social concept, information industries, science and technology as well aslegislation plan, our country had not realized the importance to protect personal informationfor a very long period of time. At present, our country does not have the formulation ofspecial individual information protection. Of course, this does not mean we will not enact it.At the moment, our protection mainly manifests in two aspects. One is to build protectionterm in some laws and regulations. The other is to put on self-decupling-characterprotection through the promise of the message controller or the specific professionautonomy standard. The second part states about the correlative terms "personalInformation Protection method" (expert suggesting manuscript) and the people statute book."Personal Information Protection method" (expert suggesting manuscript) has someadvantages in the aspects of system construction, content design, legislation idea and so on.But overall it also has some room for improvement and discussion. For example, in the localization of legislation character, it places more importance on the administration andpunishment than the civil power and responsibility. In the side of the message body rightsand interests, it unilaterally concerns the personality spirituals benefit but neglects itsproperty benefit, even wrongly counts personal information as "the new rights of publiclaw". In the aspect of basic principle induction, it enumerates a series of principles such aslegitimate principle, right protection principle, benefit balance principle, informationquality principle, information security principle, professional duty principle, relief principle,which are separated from the law's character. In the aspect of the message body rights, ithad only stipulated the right of obtaining information, the information correction power, theright of requesting ending using, but omitted the power of information deletion, the rightsof information income and so on. Moreover, the main information processing person scopehad been defined too narrowly. On account of the public department of the informationprocessing person, it only pay attention to the government department instead of legislatureand judicial organization. In addition, the foundational concepts about the collection,processing, usage and transmission are not clear enough, indeed there are somecontradiction points. In view of the design of the people statute book draft and thesuggesting manuscript about personal information protection clause, this article putsforward two proposals. For one thing, it approves of the clauses in the people statute book,and simultaneously suggests that the people statute book should distinguish personalinformation right from the right of specific personality and protect it. For another thing, itsuggests just making principle rule and leaving the specific regulation for laterestablishment. The third part summarizes the major point of the sections above, and putsforward several proposals in view of our country's personal information protection.The innovation of this article mainly manifests in the following aspects. Firstly, thisarticle has thoroughly discussed the rationale of personal information protection. Ourcountry now does not pay enough attention to the full discussion of personal informationprotection research paper or bookmaking. The author believes that, we may inquire aboutthe legal principle theory of the individual information protection simultaneously from thecivil law's personality power theory and property rights theory. When unscrambling thefoundation theory, the article does not remain at the foundational stratification such as theprivacy power, the general personality power, the information self-determination power andso on, but further discovers the hidden reason of personal information protection throughsettling the development history of the personality power protection theory, and then getsome conclusions of the development course. And it also points out that individualinformation right has gradually developed to a concrete personality power protected by thecivil law. On this condition, the article breaks through the traditional point of view that individual information only has the personality attribute, but indicates that it also has theproperty attribute. In order to prove this method, it uses the real diagnosis analysis methodto expound that individual information property has rationality in economy. In addition, itunifies the legal science theory to propose the legal rules and regulations measure of thedevelopment of individual information property. The proposed method does not violate thetraditional personality power protection theory. On the contrary, it extended the protectionspace of the personality power, which is advantageous to the realization of the law'scomprehensive protection. What's more, compared with other domestic researchers, thearticle pays more attention to each legislation document appraisal, not merely translate thecorrelated introduction system. It further searched the reason of different legislation patternand the legislation idea, and then specifically introduced the foundation of rights theory,which is the European Union pattern, and the justice foundation theory, which is theAmerican pattern. Besides, the article uses the concept legal science method to carry on theanalysis of correlated system. Concerning the limitation of personal information concept, itspecially emphasizes its objective. When concerned with the rights of the message body, ithighlights the property rights. Involved with a series of concepts such as the collection,processing, use and transmission of information, it suggests that we should perform strictdivision to formulate more precise legal rule. Also, from the view of violated actions, itcomprehensively analyzes the construction of the civil liability mechanism and theself-disciplined system. Lastly, the article closely adverts the newest tendency of the bothlegislation circle and academic circle. It implements analysis as well as commentary of thecorrelative terms of the "Individual Information Protection method" (expert suggestingmanuscript) and the people statute book.Due to the limitation of the academic level and the research ability, there are someflaws in this article. For instance, according to the overall content and structure, it does notcarry on specific research of the special field such as the Internet field, thetelecommunication field, the banking industry field, and the medical field. In thecomparison research of personal information protection legislation, while the author hasdone the best to avoid the superficial introduction, there are still much room forstrengthening the topic. The improvement of the problems above is where the author aimsat since then.
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