Research On Legal Regulation Of Cross-border Data Flow

The cross-border data flow is an essential link in the current world economic development and multinational enterprise management.At present,the research on cross-border data flow mainly focuses on the existing systems of rules and personal information security.The systematic research is absent and research on individual issues on cross-border data flow is too weak.This paper studies and discusses the legal issues on cross-border data flow from national security,public interest,personal information security and intellectual property right separately,and clearly classifies the prohibitive and restrictive rules of cross-border data flow under complex condition and special environment.Besides,it provides a basic framework for understanding and studying the legal issues on cross-border data flow and facilitates specific legislative proposal and judicial practice.Meanwhile,it details the classification in each type of flow issue according to different barrier forms and systems of rules.Chapter 1 is the introduction part,it mainly introduces the research background and significance,literature review and evaluation of related research,and introduces the key issues to be solved,research methods and innovations.Chapter 2 mainly studies the concept and classification of data and cross-border data flow.At present,for the concept of "data",the current research is carried out mainly from the perspectives of "personal data","personal information" and "privacy".But the connotation of data should be greater than the above three concepts.The data in cross-border data flow should be based on the broad concept of "data",but the rules for "personal data" obviously constitute an important part of the rules.At the same time,this part also elaborated on the current evolution of the three major data cross-border flow rules and concluded that the regulatory purposes of the three cross-border data flows were difficult to take into account.Finally,we divided the legitimate policy goals of different countries or regions into four issues: national security,public interest,personal data protection and intellectual property,in order to facilitate the following sections and further study.Chapter 3 discusses the issue of National Security.First of all,the rationality for the exception of national security is discussed.Secondly,the analysis and research on the promotion of cyberspace behavior standards are carried out and the statement that the principle of state sovereignty should be the basis for making guidelines is put forward.With the occurrence of the "Snowden incident",some countries have strictly restricted the cross-border flow of their data,but stipulated the exception clause only in some cases,which is a way of exercising on the basis of state sovereignty.Thirdly,through elaborating the sovereignty of network space under the quick development of the Internet and analyzing the concept between the developed countries and underdeveloped countries,the conclusion that the development of the sovereignty of network space belonging to the traditional state sovereignty is beneficial to the maintenance of the interests of the developing countries has been reached,and the key points for making international standards on this basis are put forward.Finally,the countermeasures of China have been put forward in view of the China's actual condition and current situation of legislation enforcement in China.Chapter 4 is concerned with the issue on public interest.It first states the legal connotation of public interest to clarify its legal boundary.Secondly,in view of the fuzziness of public interest,the principle of prevention,the principle of proportionality and the principle of explain necessity should be complied with when applicable.Then it explains and analyzes the departments that are generally prohibited or restricted by the country,including judicial judgment,serious crime investigation and prosecution,customs,tax authorities,bank and financial institutions.In addition to these generally regulated industry sectors,the other sectors will also be restricted or regulated according to the actual situation of each country.Finally,it analyzes the present situation of China and puts forward the countermeasures of China.Chapter 5 is related with the personal data security protection,with rich domestic and foreign literature.In combination with three current systems of rules for cross-border data flow: current EU directive on data protection and EU general regulations on data protection(which would come into effect in 2016);APEC cross-border privacy rules;"Safe Harbor Agreement" between Europe and the United States(which lost its effectiveness in February of this year)to new "Privacy Shield Agreement",and through summary,it discusses the protection requirements for cross-border data flow,behavior restriction for data controllers and users,personal rights of data subjects and institutional barriers brought by the circulation mechanism itself.Finally,it analyzes the present situation of China and puts forward the countermeasures of China.Chapter 6 is associated with the protection of intellectual property rights.It analyzes new issues and changes in intellectual property rights due to the breakthrough of traditional Internet technology by big data technology.In combination with the intellectual property protection,it divides them from the perspectives of copyright,trademark and patent,and finally puts forward the countermeasures of China based on the present situation of China.Chapter 7 first discusses four legal issues on cross-border data flow(which is regarded as a legal measure to eliminate the unnecessary barriers),then proposes and discusses the mutual recognition of different rules,FTA,other regional cooperation mechanisms and perfection of legal regulation of domestic laws.Chapter 8 is the conclusion part,it systematically combined and summarized the research results of this paper and described the prospect of further research.