| Personal financial information right is the reflection of personal information right in the financial field. The object of personal financial information right is personal financial information, which refers to the information that collected, used, stored and processed by financial institutions when financial institutions and individual customers have potential, realistic or past financial business relationships. The subject of the right is individual customers of the financial institution. The content of the right is to controlling his personal financial information by individual customers of the financial institutions, which reflects the individual’s right of self-determination towards his own financial information.Personal financial information right is essentially a kind of personality right, it firstly reflects the personality interests of personal financial information subject, that is, the qualification of controlling its own personal financial information. Not only there are some coincidences between personal information right and privacy right, but also there are a lot of differences. The right of privacy is a kind of negative right, emphasizing that no one can publicize the privacy of others, and the right of personal information is a kind of negative and positive right, emphasizing that personal information subject can dominate and control its personal information, which can not only protect the personality interests of the individual, but also meet the needs of other private entities to use personal financial information. In theory, because personal financial information subject can dominate and control his personal financial information, he may obtain certain property interests from his own personal financial information. For example, an individual can authorize financial institutions to secondly use his own personal information, and he can obtain some gifts, discounts as a reward, but those property interests source from the privacy interests, and it is too little and insignificant, it is not enough to make personal financial information right as a property right. Personal financial information right is a kind of personality right which not only reflects personality interests,but also reflects property interests.Personal financial information rights includes following sub-rights:the right of decision, the right to know, the right of secrecy, the right of objection, correction and deletion. The right of decision means that individuals can dicide whether the financial institutions can handle their personal information and how to handle them. The right to know means that individuals can know which financial institutions collect their personal financial informations and how their personal financial information are handled by financial institutions. The right of secrecy means that individuals can require financial institutions keep secrecy of their personal financial information. The right of objection, correction and deletion means that an indiviual can raise some objections about his personal financial information quality, if the objection is reasonable, this individual has the right to correct, make up, modify, or under the appropriate conditions, delete the wrong personal financial information. The right of decision is the core right, other types of rights stem from and ensure the implemention of the right of decision. For example, only with the right to know, an individual can know which financial institution collect its information and how to handle its information, which can help an individual to judge whether his right of decision is infringed. Only with the right of secrecy, an individual can decide whether the financial institutions can disclose his personal information to the third party. Only with the right of objection, correction and deletion, an individual can require financial institutions to ensure the quality of his personal financial information, which directly influence this individual’s decision of whether an financial institution can handle his personal financial information.Although various countries have aknowleged the above sub-rights of personal financial information, the details of every sub-right are different in different countries, which also reflects the differences in the scope and level of personal financial information protection in different countries. Personal financial information right in EU includes all kinds of personal financial information processing steps such as the collection, storage, use, disclosure,and etc., individuals have complete autonomy, therefore it is wellknown that EU has the highest level of personal financial information protection in the world; In U.S.A., the legal protection towards personal financial information right only focuses on keeping secrecy and limiting disclosure, also known as "easy in, severe out", individuals have less autonomy, therefore the level of personal financial information protection is lower than that of EU.Because of different political, economical, cultural, historical and legal contexts, there are different personal financial information right protection approaches and levels in the world. EU formulates unified legislation which is applicable to all kinds of information and all kinds of sectors. Almost all EU members have their own personal information protection law, and provide high-level protection; In U.S.A, the protection levels are different among different kinds of information and sectors. There are unified legislation towards personal information protection in public sectors, however, personal information protection in private sectors is left to self-regulation, with some exceptions of special legislation. Due to personal information in the financial sector is more vulnerable to be infringed, special legislation is formulated ro protect personal financial information.Both of the EU and the United States’s personal information protection law not only have the characteristic of public law, but also have the characteristic of private law, the EU’s personal information protection law has more charactersistics of public law, and the United States of America’s financial privacy protection legislation has more characteristic of private law. In China, there is no specific legislation of personal information protection, the protection of the rights of personal financial information scattered in various financial sub industry legislation, the scope of protection is not comprehensive, the level of protection is not high, the legislative level is not high. In the long run, China should introduce comprehensive personal information protection law,and comprehensively protect personal information, but the opportunity of establishing a unified high level personal information protection law in China is not mature, because the degree of personal information right infringement in financial sector is more serious than that of other sectors, it is necessary to introduce a special law towards personal financial information protection, China can develop Personal Financial Information Protection Ordinance, which protect personal information in the field of finance.Personal financial information right is a kind of private right, the excise of the right is protected by law, but it does not mean that personal financial information right is an absolute right, personal financial information right should have its boundary. Personal financial information right reflects an individual’s privacy interest, but the private interest may conflict with the public interest, in order to protect the public interest, personal financial information right should be limited by public interest, public interest is the boundary of personal financial information right.Anti money laundering and anti tax evasion are the most widely recognized public interest issue which is easy to conflict with the subject of personal financial information’s private interest. Because money laundering activities are mainly carried out by financial system, and all kinds of financial revenue and expenditure and economic transactions are carried out by the financial system. Therefore, the anti money laundering department and the tax department are hoping to obtain financial information from the financial institution without the consent of the individual, and through this they can find the clues of and effectively fight against money laundering and tax evasion. But this may infringe the personal financial information right, an individual has the right of secrecy, financial institutions can not disclose personal financial information to any third party without the consent of this individual. In order to resolve the conflict of public interests and private interests, personal financial information right should be restricted by public interest.But it should be noted that, restrictions on personal financial information right by public interests should also establish reasonable boundaries, this is the "restriction" on the "restriction", or "anti restriction", the purpose of it is to avoid the abusement of public authority power which represents the public interest. The establishment of reasonable boundaries should follow the corresponding principles:The principle of interests balance requires that, it should fully consider the interests of the public authority and the interests of individuals, and find the reasonable boundaries of restrictions on personal financial information right. When only limiting little personal right can achieve the purpose of safeguarding the interests of the public, the exercise of public power is relatively smaller, and vice versa. The principle of legal reservation means that the reason and the scope of the restrictions on personal financial information right by public interests should be set up by the legislation. The principle of proportionality means that restrictions on personal financial information right by public interests should be appropriate, necessary and proportionate. "Appropriate" means that the measures taken must be able to achieve their administrative purposes; "necessary" means that the measures taken should be the least harm to an individual, "proportionate" means that the measures taken should be proportionate to the purpose. The principle of distinction treatment means that the scope, the mode of restrictions on personal financial information right by public interests should be different on the basis of different situations, different national conditions and different stages.Personal financial information right is a kind of private right, it is possible to be infringed by others. When personal financial information right is infringed, the infringed party should bear the corresponding tort liability. Although there may be various infringed party, the most important one is undoubtedly the financial institution. When the financial institutions infringed the personal financial information right, the tort imputation principle should be the doctrine of liability with fault; because it is the financial institution has the proof of whether or not financial information tort exist, so the burden of proof should be inverted to financial institutions. The elements of tort include:fault, illegal behavior, causality, damage. It should be noted that, the personal financial information right is a spiritual personality right, so the consequences of the damage is mainly the spiritual damage. In theory, the consequences of the damage can be the property damage, because an indiviual can propose property interests towards his own financial information, but those kind of interests is so weak that the property damage is difficult to determine. Because personal financial information right is a kind of personality right, the civil liability of financial institutions to infringe upon the personal financial information right should correspond to the tort of personality right, such as stopping the infringement, eliminating the effects, restoring reputation, apology and compensation for damage. It should be noted that, the compensation is mainly the spiritual damage compensation, in theory, the compensation can be the property damage compensation, but it is difficult to advocate. |
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