| Digital economy is one of the main driving forces for China to promote Chinese path to modernization.Data resources have become a crucial field in global competition,and building a powerful data country has become a major trend.In 2015,the Action Plan for Promoting the Development of Big Data proposed the goal of accelerating the development of big data.In 2020,the Opinions on Building a More Perfect Factor Marketization Allocation System and Mechanism listed data as an important factor of production.In 2021,the 14th Five Year Plan for National Economic and Social Development of the People’s Republic of China and the 2035 Long Range Goal Outline and the 14th Five Digit Economic Development Plan were formulated,The two plans regard the digital economy as an important engine for promoting social development and propose to strengthen the development of the digital economy.The 2022 Opinions on Building a Data Infrastructure System to Better Play the Role of Data Elements continue to emphasize strengthening,optimizing,and expanding the digital economy.The 2023 "Overall Layout Plan for the Construction of Digital China" provides a solid guarantee for the further development of the digital economy through the overall framework of "2522" for digital China.The 2023 "Standardizing and Promoting Cross border Data Flow(Draft for Soliciting Opinions)" provides strong support for further regulating and promoting the orderly and free flow of data in accordance with the law.Since 2015,China has incorporated data security into the protection scope of the National Security Law of the People’s Republic of China.In 2016,in response to network security and e-commerce,the Cybersecurity Law of the People’s Republic of China and the E-commerce Law of the People’s Republic of China were successively introduced to ensure the stability and security of the network and e-commerce.In 2021,China successively introduced laws and regulations such as the "Data Security Law of the People’s Republic of China","Personal Information Protection Law of the People’s Republic of China",and "Regulations on the Security Protection of Key Information Infrastructure",further improving the data management regulatory system and providing strong legal guarantees for ensuring data security in China.Looking at the external data strategy,we have joined the Regional Comprehensive Economic Partnership Agreement(RCEP)and conducted pressure testing at the Hainan Free Trade Port.We are currently negotiating to join two higher-level digital trade rule systems,the Comprehensive and Progressive Trans-Pacific Partnership Agreement(CPTPP)and the Digital Economy Partnership Agreement(DEPA).In terms of cross-border data flow,we also face severe challenges from the EU led General Data Protection Regulations(GDPR)and the US led APEC Cross Border Privacy Rules(CBPR).Regarding the Hainan Free Trade Port,the country provides high support in data strategy.The "Guiding Opinions on Supporting Hainan’s Comprehensive Deepening of Reform and Opening up"(2018)proposes the implementation of the "big data strategy",and the "Overall Plan for the Construction of Hainan Free Trade Port"(2020)proposes the policy foundation of "safe and orderly" cross-border data flow,The Hainan Free Trade Port Law(2021)establishes the legal principle of "safe,orderly,free and convenient" cross-border data flow,and hopes that Hainan Free Trade Port can leverage its institutional innovation advantages to explore Chinese characteristic institutional solutions for the international discourse of national data cross-border flow rules.Hainan Free Trade Port has successively issued the "Regulations on the Development and Application of Big Data in Hainan Province","Implementation Plan for the Development of Digital Economy in Hainan Province(2020-2025)",and "Overall Plan for Smart Hainan(2020-2025)",establishing the development goals of "Smart Empowered Free Port" and "Digital Twin First Province".Based on existing regulatory strategies and as the research premise of this article,the construction of Hainan Free Trade Port is China’s national strategy,and cross-border data flow is one of the important links in the highest level of openness of Hainan Free Trade Port.It is also an important cornerstone for the development of digital economy,the establishment of "Smart Hainan",and the creation of "Data Free Port" in Hainan Free Trade Port.It is necessary and important to study the legal system of cross-border data flow in Hainan Free Trade Port.Currently,there is a lack of fundamental,systematic,and innovative research results in this field.This article adheres to a problem oriented approach,based on the definition of the connotation and extension of data,starting from the special requirements of cross-border data flow in Hainan Free Trade Port,analyzes the opportunities,missions,and challenges faced by cross-border data flow in Hainan Free Trade Port,fully draws on the high-level international data cross-border flow rule system,and conducts in-depth research on basic theoretical and legal practice issues around key fields such as digital economy,data governance,and data legislation;This article adheres to a goal oriented approach,with freedom and security as the fundamental legal value orientation,coordinates the cross-border free flow of data and data security protection,coordinates the domestic and international overall situation,and based on the practical needs of cross-border data flow in Hainan Free Trade Port,benchmarking the international advanced legal system for cross-border data flow,and constructing a legal system for cross-border data flow in Hainan Free Trade Port,We need to improve the legal system and operational mechanism of the legal system;This article adheres to an innovation oriented approach,with clear legislative suggestions and specific legal system operation practices for the cross-border flow of data in Hainan Free Trade Port.It explores the integration and innovation of data legal systems to ensure the safe,orderly,free and convenient cross-border flow of data in Hainan Free Trade Port,achieve effective data governance,and promote high-quality development of the digital economy.The overall framework of this paper includes introduction,conclusion and six chapters of the main body.The main contents are:Chapter I: Theoretical analysis of the legal basis for cross-border data flow.This chapter mainly introduces the basic concepts and classifications related to data.The data revolution has brought about the era of big data,which has spawned the digital economy.There is no unified concept of the connotation and extension of cross-border data flow,and it does not necessarily require data to cross national borders.Instead,it can be browsed,processed,and controlled by overseas entities on overseas carriers,thus achieving the goal of cross-border flow.The historical evolution of data cross-border mainly focuses on competition and coordination between Europe and America.Analyze the risk cases of cross-border data flow,recognize the essential risks of cross-border data flow,analyze the legal issues in cross-border data flow,and the risk issues that need to be paid attention to in the cross-border data flow of Hainan Free Trade Port.The development of the digital economy is one of the important supports for the construction of Hainan Free Trade Port.Legal issues such as data transactions,personal information,data ownership,flow security,data supervision,and social governance in the cross-border flow of data in Hainan Free Trade Port are the focus of attention for the cross-border flow of data in Hainan Free Trade Port.Furthermore,this paper analyzes and studies the particularity of the cross-border flow of data in Hainan Free Trade Port.Chapter II: Cross border Data Flow in Hainan Free Trade Port: Opportunities,Missions,and Challenges.This chapter analyzes the historical opportunities,mission of the times,and risks and challenges faced by the cross-border data flow of Hainan Free Trade Port.As the highest level of open free trade port in China,Hainan Free Trade Port will become a gathering center for cross-border data flow,and will be built into a free port for cross-border data flow in China.With the support of globalization,national strategy,and the "Information Intelligence Island" strategy,the development prospects of cross-border data flow in Hainan Free Trade Port are promising.At the same time,the cross-border data flow of Hainan Free Trade Port bears the historical responsibility of breaking through information technology,cultivating digital markets,innovating institutional integration,and undertaking international rules,especially the implementation of the RCEP agreement,supporting Hainan Free Trade Port to better integrate into the RCEP "circle of friends",and carrying the responsibility of pilot international rules pilot zone.The cross-border data flow of Hainan Free Trade Port also faces many external challenges,such as the challenge of global digital protectionism,the digital divide with weak information foundation,the weak dominance of data cross-border flow rules,and the pressure to undertake international rules.There are still many internal challenges to the cross-border flow of data in Hainan Free Trade Port,including insufficient protection of digital infrastructure,insufficient endogenous driving force for the development of the digital industry,insufficient support for digital talents,imperfect legal systems,and imperfect regulatory measures for institutional operation.The opportunities and challenges of cross-border data flow in Hainan Free Trade Port coexist,and it is necessary to closely grasp the new trends in the global legal system for cross-border data flow.Based on the development trend of the digital economy in Hainan Free Trade Port,research must be conducted to develop a legal system and operating mechanism that meets the cross-border data flow needs of Hainan Free Trade Port.Chapter III: Overseas Investigation and Development Trends of the Legal System for Cross border Data Flow.Compare the legal practices of cross-border data flow between global,regional,typical countries,and typical free trade ports.Global UN,WTO,OECD,G20,OGP;By comparing the legal practices of regional GDPR,RCEP,DEPA,CPTPP,as well as typical countries and free trade ports on cross-border data flow,this paper summarizes a legal system for cross-border data flow that is worth learning from,and explores the construction of a legal system and operational mechanism for cross-border data flow in Hainan Free Trade Port.By analyzing the extraterritorial rules of data cross-border flow,the development trend of the legal system for data cross-border flow is summarized: data aggregation in three major regions: North America,Europe,and Asia Pacific;Legislation has formed three levels: domestic legislation,regional systems,and international rules,but a unified mechanism has not yet been formed,which still manifests as fragmentation and soft legalization;There are three models of data regulation,with the EU,the United States,and Russia focusing on the freedom and security choices of cross-border data flow based on historical and practical differences;Cross border data flow focuses on three types of issues: digital economy development,individual rights protection,data sovereignty,and national security.Chapter IV: Legal logic for the overall governance of cross-border data flow in Hainan Free Trade Port.This chapter compares four key words: technology and system,freedom and security,outflow and inflow,and domestic and international.From the driving force,value orientation,path selection,and legal system of cross-border data flow in Hainan Free Trade Port,it studies the logical structure of data governance in Hainan Free Trade Port.The development of the digital industry cannot be separated from advanced digital technology and the hard support of massive data,but at the same time,it also requires the soft support of the legal system for cross-border data flow.Technology and institutions play a joint role in promoting the development of the digital economy,and we should seize the new heights of digital technology and enhance the discourse power of legal systems.Excessive "freedom" or "security" may cause harm to the interests of the state,society,and individuals.The control of cross-border data flow should balance the principles of freedom and security.The two aspects of "inflow" and "outflow" cannot be solely focused on."Being able to obtain and protect" should be the direction of data governance in Hainan Free Trade Port.In terms of the current legal system,the relevant rules on cross-border data flow in domestic law are not sound and need to be further improved;In terms of international cooperation,it is extremely important for cross-border data flow to form its own stable strategy.It is necessary to learn from international experience,reflect coordination with Chinese characteristics,and focus on the integration of domestic legislation and international rule systems.Chapter V: Construction of a legal system for cross-border data flow in Hainan Free Trade Port.This chapter proposes a system construction concept from four aspects:planning,regulations,standards,and international rules,based on the actual cross-border data flow in Hainan Free Trade Port.To actively promote the digital economy strategic planning of Hainan Free Trade Port,establish the overall direction,goals,plans,and action plans for building a "data flow free trade port".Building a legal support for Hainan Free Trade Port to adapt to the development of the global digital economy,ensuring that reform is based on legal evidence,establishing a legal system for cross-border data flow that meets the needs of Hainan Free Trade Port development,and proposing the formulation of the "Hainan Free Trade Port Data Regulations","Hainan Free Trade Port Data Security Management Measures",and "Hainan Free Trade Port Data Transaction Management Measures".Adhere to international requirements,establish data industry standards,establish security assessment standards and specific rules for cross-border data flow,and establish standardized contract texts for cross-border data flow.Hainan Free Trade Port focuses on three aspects of cross-border data flow for different trading objects.It should focus on researching and adopting different response measures,actively coordinating existing cross-border data flow rules in various regions,enhancing the discourse power of data rules,building a "circle of friends" for cross-border data flow,and promoting global governance of data cross-border flow.Chapter VI: The operational mechanism of the legal system for cross-border data flow in Hainan Free Trade Port.This chapter proposes four measures for the operation mechanism of the legal system: a comprehensive regulatory mechanism for diversified governance,a smart and efficient data supervision platform,an open and shared data trading center,and a fair and just dispute resolution mechanism.It mainly deepens the operation of the legal system from the perspective of dynamic implementation.In terms of regulatory mechanisms,it is necessary to fully utilize specialized agencies+joint meetings,administrative means+market mechanisms,inclusiveness and prudence+strict accountability,industry self-discipline+subject responsibility,and form a pattern of social pluralism and co governance.In terms of regulatory platform construction,we will leverage the social comprehensive governance platform and fully utilize new technologies such as 5G technology,big data,cloud computing,blockchain,Internet of Things,and artificial intelligence to create an electronic fence for cross-border data flow in Hainan Free Trade Port.The construction of the Hainan Free Trade Port Data Asset Trading Center can build it into the digital economy engine of Hainan Free Trade Port,the first data asset trading center in China with the function of "data cross-border",achieve the safe,orderly,free and convenient flow of data in Hainan Free Trade Port,and become a national data asset trading demonstration zone and a global data asset cross-border flow hub,And studied specific construction plans for the Hainan Free Trade Port Data Trading Center.In the face of legal disputes arising from the cross-border flow of data in Hainan Free Trade Port,it is necessary to fully utilize civil law,administrative law,criminal law,domestic and international legal systems,standardize procedures such as cross-border investigation and evidence collection,international judicial assistance,and build a diversified dispute resolution mechanism. |
