Research On Legal Attributes Of Personal Information

The topic of this thesis is the legal attributes of personal information.In the information age, personal information has come into field of commodity trade. This puts forward new challenges to the legal attributes of personal information which is closely related to the life of every person. What on earth is the legal attributes of personal information? Which way is better to protect the legitimate rights of the owner of personal information when legislate? We must think and research the questions above.It is a pity that there is no legislation about personal information in our country.Only'Personal Information Protection Act (Experts on) and the Legislative Study of P. R. China'brought forward by Mr. Zhou Hanhua. Also many arguments about the legal attributes of personal information exist in academia filed. This thesis begins with three viewpoints of legal attributes of personal information, analysis the advantages and defects of the three ones, then comes out the opinion that personal information which has commodificated is a sort of possession with personality attributes. The opinion based on two points of view. One is that personal information is a sort of property. The other is it also has personality attributes. This thesis also animadverts on the opinions against the property attribution of personal information one by one. Three parts of this paper can be summed up as below:Part One Evaluation of viewpoints of legal attributes of personal informationThere are three points of view about legal attributes of personal information in academia field, i.e. theories of object of ownership, theories of object of privacy rights and theories of object of personality rights. The first one stresses that personal information is the object of ownership, it means it is res. This view accepts the view of property attributes of personal information, but it has unabsolvable vices. Firstly, personal information isn't belong to category of res, it has no common characteristics of res and it is without entity what is the basic of real right and theory. Secondly, it ignores the personality attributes of personal information, so it's hard to obtain spiritual reimbursement when the owner's personal information has been aggrieved. The second one considers the personal information as privacy. The theory admits the personality attributes of personal information, so makes the spiritual reimbursement easy to be compensated, but it breaks the system of privacy rights for bringing in a part of personal information which don't belong to privacy. At the same time, it ignores the property attributes and makes it hard to protect the personal information effectually in trade. The last one focus on the personality rights. It takes the personal information out of privacy and makes it a new type of personality rights to be protected. It has common vices with the second view, i.e. ignoring the property attributes, also artificially dissever the privacy rights and sensitive personal information related to privacy. So, this view can't be adopted.Part Two My opinion on legal attributes of personal informationA new viewpoint that personal information is a sort of property with personality attributes has been put forward and proved by two points of view.Personal information is a sort of property. Firstly, the property attributes is incarnated by the commodification of personal information and secondary use and exploitation of personal information. The commodification means the personal information enters into the trade field directly. The secondary econdary use and exploitation of personal information means to exploit the personal information to be new database for use or trade. The two ways above both take personal information as a kind of property for exploitation and use. Secondly, according to the definition of available property system from Posner, the famous American economist, personal information itself includes property ingredients. Posner points out there are three standards, i.e. universality, exclusivity and transferability, and personal information accords with the three characters. At last, for the protection mode, personal information should adopt the protection mode of property rights, but protection of personality rights should be adopted to the kind of action that are in violation of atrributes of personality, this will be more available to protect personal information.Personal information possesses attributes of personality. Firstly, from the content of personal information, we can conclude that personal information clings to the natural person, and it belongs to the natural person himself specially. So personal information is linked together with personality of natural person, it has attributes of personality. Secondly, from the interests which are embodied from personal information, we can find that personal information possess privacy interests and general personality interests.Part Three Content and criticism of viewpoints that deny the property attributes of personal informationThere are many scholars raise queries on the opinion of property attributes of personal information in different points of view in and out of China. Scholars who object to the opinion of property attributes of personal information directly mainly protest this viewpoint in five ways, that is privacy market failure, privacy as public good, property and free alienability, abjectify of subject, moral riks. Scholars who object to the opinion of property attributes of personal information indirectly mainly protest this viewpoint in the way of the new rights which generate from commodification of personality.This article animadverts on these denial viewpoints serially. In allusion to the viewpoint that directly object to the opinion of property attributes of personal information. Firstly, the phenomenon of privacy price discrimination, absence of market subjects, and information asymmetries which are embodied from privacy market failure are settled by an idealized market-based solution accompanied by legislation; Secondly, privacy is not a sort of pulic good.it is different from the privacy commoms ,it doesn't possess the two of the good's qualities - nonrivalrous consumption and nonexcludability. Thirdly, the wide spread of personal information and indetermination of price that cause by free alienability of property can be conquered by restriction of free alienability of personal information. We can also set higher compensation for those who set prices in violation of privacy rights. Fourthly, major premise's basis of the inference of abjectify of subject-all of the objects of the personal rights are inherence of subject, and they can't separate from subject, and minor premise- personal information is object of personal rights, are both not completely correct, so the conclusion- personal information is inherence of subject, and it can't separate from subject, is not correct. Fifthly, moral riks exist while taking personal information as property, however, we can't prevent personal information from alienability as a sort of property. More important thing we should think about is how we set a frame to protet it.The opinion of property attributes of personal information indirectly include the viewpoints of commercial rights of personality and the viewpoint of intellectual property rights. Firstly, the essence of commercial rights of personality takes personal information as object of personality rights, it has defects of the viewpoint of personality rights that can't be overcame; Secondly, personal information doesn't possess the intellectual property rights'quality-creativeness, and unlike intellectual property rights, it has no restriction of district. At the same time, controversy exist on the issue that intellectual property rights is a kind of personal rights or a kind of property rights. So it is not good to adopt this viewpoint to solve the issue of legal attributes of personal information.