| The personal information that can be able to identify the specificnatural person, connect to the natural and social did not get the attentionof the legal system in the long history. But the value of social interaction,management and commercial has already been found. With theeconomic development and the progress of science and technology,human society has started to enter the information age, while enjoyingthe convenience brought about by the development of informationtechnology is also deeply appreciate the various social problems. Themost valuable resource of the21st century as its value had been knownat the beginning has brought the deprived of the economic interests ofthe derogation, the leak of the personal information, life trajectory beexposure, personal image be distorted, the risk of personal security and others. In fact, the beginning of the understanding the value of personalinformation is the beginning of the plunder and abuse, because themalicious use of personal information the first time in the history, theybrewed the tragedy of the Jewish people, automation equipment can onlyscale processing information with the U.S. government will be to keeptrack of the Japanese-American. Because of this, the theory about thelegal protection of personal information and legislative research took thelead in Europe and the United States. Legal theory of civil law countriesin Europe for the protection of personal information are almost alwayscomes from the theory of personality rights, personal informationprotection legislation often aims at the protection of natural personspersonality rights, especially human dignity have been violated due tothe disposal of personal information. Germany develops the theory fromthe right to self-determination of the right of personality development ofthe personal information on the right to self-determination and requiresthe protection of information on the main decisions of the legitimate rights and interests of freedom for their personal information, to improvethe control of the subject to the personal information and theinvolvement of information during the transfer process, while stressingpersonal information with private interests and social values. By contrast,the United States has its unique, all-encompassing theory to protect thepersonal information. The privacy theory develop from the solitude rightto the control over personal information, the theory more emphasis oninformation subjects have control over their personal information, andthe scholars of the theory use the property rights theory to explain thesubject of rights of control over the source from the right to the mainpower of the property. Thus it gave rise to discuss the theory from theuse of property rights and the market mechanism regulating theprotection of personal information. Property theory of personalinformation in the questioning and thinking constantly forward toHegel’s theory of property rights as the philosophical cornerstone of thedevelopment of the personal information property rights theory. In fact, as the pursuit of the allocation of resources and the efficiency of thetransaction to the subject of the property theory of personal informationhas its flaws and shortcomings, the personal Information property rightstheory developed from it is facing many of the exercise dilemma. Thus,although the property interests connotation of personal information is areality and should be recognized by the law, but the property interests ofthe connotation is different from the general property interests ofconnotation, the subject is from the personal information and thepersonality factors. In other words, the personal information between thepersonality and property is still a personality factor and protected byconcrete personality and full protection of personal information rights.Because of the dominance of the right to personal information capabilityentirely the connotation of the property interests of the personalinformation covering the processing and commercialization of personalinformation phenomenon does exist, but it is not produced a new type ofrights, nor the right to change the personal information essential attribute, it just adds the economic use of power to the content of the right topersonal information and the nature.Since personal information into the sight of the law, to become alegal concept, then its legal title, specific scope and category should bere-examining and thinking. There is no absolute different from thepersonal information and the personal data, but more in line withChina’s terms of traditional and clearly reflects the pass and perceptionof the subject, and with the development of the information age andinformation technology its connotation means that precipitationgradually showing humane care. Although everything in our daily liveswith a natural person, contact information call the personal information,but in the field of law, only those who are natural persons relateddirectly or indirectly identify the natural person belongs to the personalinformation. Personal information is of great significance in terms of thenatural person, which lies not only in the discriminating personalinformation, that personal information hosted multiple interests connotation that personal information to meet the information needs ofthe main development with private interests. Since the private lawachieves the main body of the private interests of the information byrights and legal interests, therefore, in the field of personal information,the object of private law protection is private law rights, namely the rightto personal information and the benefits of personal Information. Thevalue of the personal information for the natural persons, not only hasestablished reasonable feasible. In fact, the rights of the content of theright to personal information have independence, not to protect the rightsof a natural person alone in the information age, but safely in theprotection of natural persons in the information age, with dignity, toparticipate in social life, others without natural person licensed or otherlegal basis, no manual processing to automated processing or retrieval ofa natural person’s personal information, a natural person has the right touse, queries, corrections, blockade, and delete their personal information,a natural person shall have the right to refuse to provide or oppose the processing of their personal information, the right to stop the intention ofthe behavior of the direct sales of personal information processing, theright to receive the income generated by the processing of their personalinformation for commercial purposes. The wide range of personalinformation as objects of personal information rights due to the scope ofthe legal protection of personal information, private law will also beexpansion of its protection of the object to the legal interests. Therefore,it is necessary to Personal Information legal interest are pointing to theobject range to be clear, that is not available is to retrieve the manualprocessing of personal information, the natural person purely private ordomestic activities in the processing of personal information, in thepublic or public activities, processing of but Audio is not combined withother personal information class personal information.Private law for the protection of personal information rights includenot only positive specification also includes negative relief. Thespecification is actually a positive confirmation of the legislation, the right to personal information can get confirmation of the Civil Code inChina is of great significance, not only for the realization of the privateinterests of the information on the main, but also for the freedom of thepersonal information, orderly, safe circulation. Future Civil Code willconfirm the right of personal information by the personality right, in fact,the personality right of personal information rights provisions is also thebasis of personal information protection law could commence. PersonalInformation Protection law of personal inform the rights of the contentand the right to exercise private interests of the implementation toprovide protection, but also for other special law to provide protection ofinformation. Private law provided the negative relief for personalinformation rights, not only is the "Tort Liability Law" to build thecomplete form of liability, and more should be perfect the right systemof personality rights protection, so when faced with the danger ofprejudice to the self-help or litigation, in order to avoid the emergence ofrealistic damage results. By contrast, private law protection benefits provided personal information only negative relief, this relief should notonly be designed in the legislative rules of protection of legal interests,but should also build private law based judicial confirmation beneficialrelief system. In fact, simply be analyzed from the point of view of thetort claims, personal information tort identified acts that infringe uponthe right of personal information with the acts of infringement of legalinterests of the personal information, which infringe on the right ofpersonal information behavior refers to public authorities breach ofstatutory duty behavior of non-public power authority based onsubjective fault violate statutory or contractual obligations toinfringement of the right to information, and suffered mental damage orloss of property resulting in the main body of information in accordancewith the law shall be liable for tort liability. It is based on the concept ofthe personal information the principle also be different based on thedifferent subject, the public authorities applicable to the principle ofliability without fault, non-public power authority for the principle of presumption of fault liability. In contrast, the infringement of legalinterests of personal information behavior need to take responsibility,requires that the perpetrator subjective fault and must be intentional. Inaddition, personal information specific constituent elements,the liabilitycommitment as well as the basic principles of the Tort Liability Lawshould be specifically expand.Personal information private law protection system is not thesimply system to protect the information of the main interests, but bothto protect the legitimate rights and interests of the information and topromote the personal information freely, orderly, and safely. Thestructure and content of Personal information private law protectionsystem specific rules designed necessarily to balance a variety ofdifferent interests. In the personal information private law protectionsystem, the relationship of the personal protection of the right toinformation and the freedom of the press is the focus of the problem cannot be avoided. In fact, whether freedom of the press, or personal information of the bearer human dignity and personality freedom existsat the level of the Constitution through the principle of proportionality,and therefore can not be certainty to absolute the value of them. In fact,better means of conflict solve the protection of personal informationrights and press freedom should be the creation of a perfect system ofpersonal information rights for the main body of information in thesystem of protection of personal information of private law, in particularto set the rules of the right to stipulate restrictions, for example: thefreedom of the press to set clear exception or exemption from the rulesconcerned in the handling of personal information, personal informationprocessing activities shall be the purpose of the news reports and legalbasis rules exemption will apply to the processing of personalinformation for the purpose of the news reports carried out personalinformation processing activities exemption to fulfill the obligation ofpersonal information for the purpose of news reporting and processingactivities exemption applies to some of the basic principles of the Personal Information Protection Law, but the principle of the quality ofthe information, the specific principles and security policy shall not beexcluded from applicable. Similarly, in the system of protection ofpersonal information of private law, the relationship of the personalprotection of the right to information and freedom of action is also aworth thinking problem. Freedom of action is an important freedom ofcitizens’ personal freedom under the Constitution as well as the variousdepartments of the law should provide protection, personal informationprotection law is no exception. Personal information protectionlegislation in order to safeguard the people’s freedom of action, most ofthe countries exclude personal information processing activities in thepurely private or family activities outside the scope of application of thelaw. From another perspective, the processing of personal informationthat has nothing to do with the natural person "purely private or familyactivities" behavior, the system of protection of personal information ofprivate law need to adjust and regulate. However, from the point of view of safeguarding the freedom of the people’s behavior, personalinformation private law protection system should be set a special rule forthe natural person’s personal information, for example: as long as thenatural person’s personal information handling behavior if for non-profitpurposes and does not have violated the purpose of the interests ofothers personality can be exempt based on the rules applicable to thehandling of personal information, from time through the consent of thesubject of information, in order to maintain the right balance betweenthe protection of the freedom of action of the subject legitimate rightsand interests of natural persons. In addition, the network environment isan important issue that the system of protection of personal informationof private law can not go explore. Network environment makes personalinformation has the expectation of a higher level of security protection,network environment also makes personal privacy has a relativenon-public network environment so that the personal information has thepossibility of conversion to privacy object. Because of this, the system of protection of personal information of private law should set up specialsecurity rules and special processing rules for personal information inthe network environment, thereby mediating the flow of personalinformation in the network environment, the contradictions and conflictsbetween the use of personal information security.From the current situation of China’s legislature, although Chinahas nearly forty law, three dozen laws and regulations, as well as nearlytwo hundred regulations related to personal information protectionissues, but these legal value the punishment or is not strong or tangledwith privacy. Shortly, there is no one from the correct angle of the rightto protect people’s personal information, and could promote legal systemfor personal information processing activities. From the point of view ofsocial reality, China should establish a system of protection of personalinformation of private law, established personal information private lawprotection system is conducive to the protection of natural personspersonality rights, help to promote the development and utilization of information resources, will help promote the construction of legalsystem of China’s information technology. Because of this, Chinashould build the system that it’s value targeting the main personalinterests to the protection of information, promote the circulation andutilization of personal information, and to maintain a balance betweenthe protection of personal information of private law system. In short,the system of protection of our personal information private law shouldadopt a unified legislative mode, to develop a personal informationprocessing activities of public authorities and non-public powerauthority as the basic Law for the protection of personal information,guidance in the unification of the law under to timely amendments ordevelop other areas of legal norms for the protection of personalinformation. With due reference to the concept of the safe harbor mode,and actively guide the way of legislation, and promote the healthydevelopment of the industry self-regulation. Our personal informationprivate law protection system is a broad group of private law system to protect personal information, based on the provisions of the personalinformation compiled by the personality rights of the personalinformation protection law in the Civil Code in China right system, asthe personal information private law for the basic Law and other civiland commercial legal norms as an important supplement. Among them,the Civil Code in China Right of Personality should establish a chapterto dedicate personal information rights and personality rights under thespecial primary and special environment to protect the personalinformation in the network environment. Our personal informationprotection law should set seven chapters as the general rule, the basicprinciples of the Personal Information Protection Law, the right topersonal information, the rules of the processing of personal informationwith personal information processing obligations, limitations andexceptions, the cross-border flow of personal information and annex to protect the right of the personal information subject, to promote the flowof personal information free, orderly, safe and legal use. |
PDF Full Text Request