The Rsearch On Protection Of Personal Information By Civil Law

The advent of big data has not only brought about significant changes in the way we live and think,but also brought with it growing risks and challenges.With the rapid development of computer and network technology,personal information,as an important commercial wealth and social resources,has been re-recognized while realizing the value of personality.Personal information not only has the attribute of personal interest,but also has certain commercial value.The use of personal information not only promotes the social welfare,but also increases the risk of the information subject's personal and property rights being threatened and infringed.At the same time that personal information brings convenience,the ensuing information security risks are also asking every legal person.The Civil Law Protection and regulation of personal information in the era of big data is a sacred mission entrusted to us in the new era,it is urgent and necessary to study the protection of personal information in civil law.Personal information has the legal basis of civil law protection.From the value dimension,personal information not only contains the independent value of natural person's personality interest,but also shows its circulation value and public value.From the perspective of institutional dilemma,the traditional information self-determination theory and the informed consent rule face the challenge of the big data era,and the traditional privacy protection model and the general personality protection model can not meet the current information development needs,can Not complete the protection of personal information in all aspects.From the perspective of ontology,the scope and content of personal information can not be replaced by other rights.Personal information is the theoretical basis of specific personality rights.From the perspective of object dimension,personal information should include both formal elements and substantive elements,and it should be classified.At present,China has formed a comprehensive management system of many department laws,including penalty,administrative control and Industry self-regulation,but this can not change the essence of personal information as an object of civil law,personal information should be protected by civil law to realize the civil remedy of tort.The cognizance of personal information tort liability is the premise of civil law protection.From the point of view of the principle of attribution,the principle of attribution of personal information tort should be based on the different application of the subject of tort and the distinction between the strict liability.Compared with common tort,the Tort of personal information has the characteristics of unequal subject status,hard to determine the tortfeasor and hard to determine the damage result The basic forms of personal information infringement are mainly manifested in the illegal acquisition,provision and use of personal information.Judging the composition of the tort of personal information is an important prerequisite for judging the liability of the tortfeasor.The judgment of the result of damage,the causality and the cognizance of the fault of the tort of personal information are special,for Special Analysis.On the basis of the balance of interests,the right of personal information should be limited,and the reasons for exemption are mainly embodied in the rational use of information circulation,the management of public interest and the exemption after consent and information disclosure.The civil liability of personal information infringement is the relief way of civil law protection.The relief of personal information infringement should be constructed from the perspective of damages and non-damages: The non-damages dimension should be more oriented towards prevention,and the self-contained system of preventive measures should be constructed,it is necessary to improve the status and utilization rate of stop infringement,make amends and make clear its applicable rules.The compensation responsibility of personal information infringement should be perfected from three aspects:property damage compensation,spiritual damage compensation and punitive compensation:Property damage,the liability mode of compensation for property damage exists as a regular relief mode in tort relief,which can introduce legal compensation law to make up for the deficiency of traditional tort compensation The right to personal information,as a personal right,has the theoretical basis for the application of compensation for mental injury,but it is faced with the difficulties in two aspects: The application threshold is too high and the amount is difficult to be determined,in view of the irreversibility of personal information after being infringed,we should consider using the punitive compensation system for reference,and improve the compensation mechanism of moral damage from two aspects: the consideration factors of compensation for damages and the determination criteria,and make clear its suitable condition and perfect its system design.The protection of personal information in civil law needs corresponding procedural rules to ensure its realization.The procedural protection of the protection of personal information in civil law should be constructed from three aspects: The introduction of the class action,the application of the pre-suit injunction and the distribution of the burden of proof,the introduction of the class action can effectively protect the victims and punish the illegal acts.The participants in the class action include the plaintiff,the representative,the defendant and the court.The duty and the responsibility in the action need to be clear The pre-suit injunction system helps to avoid the continuous damage caused by the tort and guarantee the smooth progress of the civil action,the pre-suit injunction system of infringing personal information right has obvious effect on stopping the infringing act in time and preventing the damage consequence effectively.The application of the pre-appeal injunction system in the protection of personal information in the civil law should be examined by the court on the necessity of the injunction,and the court may lift the injunction according to its authority or the new evidence of the parties if it is necessary to set up the lifting procedure,the information right holder has the right to ask the actor for compensation if the actor violates the injunction and causes damage to the information right holder before the injunction is revoked or before the injunction is invalidated At present,there is no special provision on the allocation of the burden of proof in the case of personal information right infringement.Based on the difficult situation of evidence-giving for the subject of personal information right in the era of big data,the theory of "dangerous field" should be taken as a theoretical guide,combined with the principle of liability fixation of personal information right infringement,while ensuring flexibility,the distribution rule of the burden of proof caused by causality.The Internet Age has given birth to the transformation of data processing methods,and the protection of personal information has become an urgent issue to be considered and solved in the era of big data.Although China has initially formed a comprehensive protection system including criminal law and administrative punishment,it can not replace the role and significance of civil law protection.Personal Information,as the object of a specific personality right,is a reasonable choice based on the interests of personality and property,and combined with the actual needs,the protection of personal information in civil law needs to measure the status of both sides on the basis of the right to information to protect the tilt.The system design needs to carry on the benefit to weigh,in the personal information protection needs to weigh the personal information self-determination comprehensively,and to other people's reasonable use and the public power appropriate control gives the approval,absolute individual self-determination is not in line with the future direction of personal information.The protection of personal information in civil law should be based on its legal connotation,explore the composition of its tort liability and its assumption of liability,and improve its procedural protection along the path of right protection,on the basis of comprehensive consideration of various interests to make reasonable institutional arrangements.