| With the advent of the era of big data, personal data stolen, pre installed backdoors program stealing user privacy, write a virus to steal personal data, maddening harassing phone calls, theft ID data for money laundering and fraud, openly selling personal data a dime one data, all of these phenomenons emerge one after another. In response, relevant law of China on the protection of personal data begins in scattered in various departments of law. Although, in 2003, the State Council commissioned the scholar Hanhua Zhou drafted < Personal Information Protection Act(expert proposal draft) >, eventually did not pass the National People's Congress Standing Committee. At present, even for personal data protection legislation concept, there is no unified understanding. Therefore, it is very necessary to study the legislative principle of personal data protection law, legislative logic and based on the reality of our country's social conditions, to put forward the model of personal data protection law.Personal information achieving digital has become the language that computers can understand. The use of computer automation processing technology, it is easy to record, collect and use personal information. The category of personal data is less than the personal information, but its direction is more clearly. It not only has independence, independent of the subjectivity, can been copied, and unlimited mobility, but also has a relationship with the main body, identity subjectivity and other characteristics. These characteristics make the personal data has an unparalleled use value, it meets the needs of the state, enterprises and individuals in the automated decision-making mechanism, but its abuse has violated the rights of individuals. The discussion of about how to effectively use the personal data, and protect personal data rights and interests can be heard without end.Legislation and legal research in different countries and regions provides a practical and theoretical basis for the formation of "personal data rights". Privacy theory, theory of personality right, theory of property right is three main theories about the right to personal data. Personal data privacy theory, from the theory of the right of privacy has been extended to the theory of personal information control. The practice and development of personal data privacy right is the most typical one in the United States. Personal data personality right is often referred to the right of personal data self-determination, and its practice and development is the most typical in German law. The development of the property right of personal data is relatively backward. It is a new kind of property right, which is the main body to control the commercial value of the personal data, which is generated in the background of the commercial use of personal data. The object of personal data right refers to any information that can identify the natural person directly or indirectly, and it needs to satisfy the condition of computer records, recognition, storage, processing and retrieval. Personal data right parameters include: the right to know personal data, personal data privacy, personal data query, personal data correction, personal data storage, Personal data delete right and Personal data compensation claim. Personal data legal interest is defined as Infringement form, of which the behavior of individual data processing to the data subject. It is often not only against the spirit of personal interests, but also against the material interests of the individual; not only infracts the individual's personality interests, but also infracts personal property interests. The right to personal data has the rights of constitution and civil property, and it is a new type of rights, which has personality right, property right and so on.There is no denying that the right of personal data has a strong social attribute, and it has an internal conflict with the social interests. Conflict in the protection of personal data occurs in many subjects, is the conflict between legitimate or legal rights, and is competitive and antagonistic. Currently, the right to personal data has the trend to make place for the right to life, health and public safety. In the field of private law adjustment, the conflict between the development of electronic commerce and personal data right can not be avoided. It is no exaggeration to say that leaving the processing and using of personal data, e-commerce will disappear. In addition, the development of market economy can not be separated from the establishment of credit system. If there is no complete credit system, it can not be said as a mature market system. There is also a contradiction between the construction of credit system and personal data rights. No matter the development of electronic commerce and the construction of information system, both rely on personal data free flow, especially flow across boundaries. And the right of personal data is to restrict the flow as the core, there must be an inherent conflict between the two. Personal data protection legislation is to coordinate and balance these conflicts that have legitimacy rights, especially for the personal data right to delineate the boundaries. When realizing social interests, and at the same time, providing the right protection for individual, to achieve optimal legislative effect.Law can not but reflecting the objective law of social development, but the law can not be purely equivalent to the objective law. The rationality of the law should be reflected in not only the objective law, but also reflects the needs and will of people. Savigny emphasized that when a state turns a blind eye to social rules of natural evolution, but working in the solidification of legal principle to a comprehensive concept system, the natural evolution process will wither away. The shape of any legal system is not achieved overnight, usually under the interaction of informal constraints, such as social habits, culture, and universally recognized values, the development of the legal system changes along the original path. We usually call this phenomenon the path dependence of the legal system. The structural and functional theories of Luman and Parsons reveal that there is a co-evolutionary relationship between law and social system. The common evolution paradigm of law and society is: differentiation, adaptation of the upgrade, and the generalization of contains and value. The common evolutionary paradigm supports the adaptive logic between the legal system and the social context. At the same time, the development of information technology plays a key role in the evolution of personal data protection law and other related network legal system. Code is the rule of the information technology embedded in the network space. From the regulation of the code to the habit of constraint generation process, in fact, it is spontaneous order like Hayek said. In legislative decision-making, should not ignore this spontaneous order, but should strive to understand and find these spontaneous orders, maximize compliance in the personal data protection act. Code is not only numbers and symbols that a programmer has written, but also a kind of values. The level of information technology determines which code becomes the core of regulation. The United States personal data protection act is to promote the development of information technology as a guide to the formation of the typical legal model. In fact, this model promotes the development of information technology successfully.Law is made by man, and it is impossible not to reflect the will of the maker. Each law embodies the needs and values of the legislators. Different values are reflected in the determination of the right, recognition of rights, the purpose of the law, legal principles, and many other aspects. The value realization of these laws is closely related to the determination of the limits of rights. Therefore, the value of the research method can start with the goal orientation of law, the way of coordination of rights and limits, and so on. They are the door of opening legal value and realizing the principle. There is a conflict between the right of personal data and social interest, so there is a limit on the conflict, and the restriction is to better protect the right of personal data. The limitation theory has internal limitation theory and outside limitation theory. The limitation of the individual data right should be based on the mixture theory. Personal data right is a kind of right which has strong social attribute. Its nature is different from the right of life, the right to health, and can be reduced to the right. This is the presupposition that personal data protection law gives priority to the realization of social interests as value oriented. Even if the social interests can proceed over the right of personal data, we still should follow the legal principle of social interests, the principle of least injury, the difference of the principle, the principle of legal reservation, the principle of proportionality and social equivalent.American personal data protection law gives priority to Internet economic development benefits as value oriented. It is very different from the EU model, so the social effects are very different. The European Union stressed the political nature of personal data, emphasizing equality, which is regarded as an important part of human rights, to take a comprehensive, unified legislative model. The United States focused on the economic characteristics of personal data privacy, highlighting its private value, to adopt a decentralized legislative model, and establish industry self-regulation model. The personal data protection law of our country can draw lessons from their experience, learn lessons from the legislation, but should not blindly follow. Our country has a special social environment and front legal resources. Some scholars consider the "lawlessness" of our personal data protection, is a legal vacuum. This argument is somewhat exaggerated. However, the existing laws of our country do not provide a comprehensive protection for the right of personal data, the main deficiencies are: Provisions scattered, low level of effectiveness, lack of interoperability, based on passive protection, no clear personal data in nature. China has recognized the shortcomings of the law, since 2007, continue to amend the laws, regulations, and increase the protection of personal data. The most awesome is the ?Criminal law amendment(seven) ?, and ?Criminal law amendment(nine) ? is to increase the penalties for infringement of personal information crime. At present, China's personal data protection law has covered telecommunications, travel, insurance, Internet, consumer rights and interest protection, protection of minors, other special fields and main body, in addition, has formed a decentralized legislative model of personal data protection.Take another look at the social environment of our country, in recent years, China's economic decline is an indisputable fact. The development of electronic commerce can inject new vitality into China's economy, driving the national innovation and entrepreneurship. The development of e-commerce inevitable requires innovation of information technology, which makes our country with the rapid development of information technology. Even Bill Gates also acknowledged that the level of information technology in China has nearly close to the United States. Personal data protection must consider the development of e-commerce. We should note that no appeal is the Chinese traditional law value. Under the influence of Confucian culture, our country has been adhering to the concept of social standard, so the demand for personal data rights is not as strong as the west. They are willing to reach agreement with the enterprise through equal communication.Only with enough, true and accurate personal date, that can have the value of mining and utilization. If the right to personal data can not be protected, individuals may choose to withdraw from the market or provide false information. Therefore, the legal recognition of the right to personal data is very necessary. But the value orientation of the legal protection of personal data is to realize socioeconomic development interests as the core, to promote the circulation of personal data as the purport, and to seek a proper balance between the protection of personal data rights and the distribution of personal data. Consequently the legislative system of our country must grasp the following points: 1) correctly understand the nature of the right to personal data. The right to personal data is not only a constitutional right, but also civil rights, especially its property should not be ignored. So we can protect the rights of personal data through the market mechanism; 2) personal data protection law is the domain law, is the personal data protection law, and is also the personal data transaction law, but is not the personal data management law; 3) our country should adopt the dispersed legislation mode, continue the practice since 2007, in the key areas of the law to increase the protection of personal data; 4) to clarify the legal status of personal data rights, but do not hinder the development of e-commerce and cross-border trade, can make the?Government disclosure regulations? rise to ?Government information disclosure and personal information protection act?; 5) does not set up a separate data council, with the combination of industry self-regulation and safe harbor model to protect the right of personal data, in particular, the system of data leakage notification should be established. |
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