Research On The Independent Protection Of Personal Information In China

Since 1970s the European countries have began the personal information protection lawmaking. As a result of various reasons such as the social concept,the development of science and techology ,the legislative Planning and so on, our country has not pay enough attention to personal information protection for a long time,and up to now, has not specific legislation about it. Faced with the growing abuse of the personal information,we must speed up the legislative pace ,enact a specialized law on it as soon as possible and establish a basic system on personal information protection to regulate the relevant act.Except the introduction the article is divided into four parts:First part, the fundamental issue about personal information protection. The personal information is the objective information which includes the name , the sex of an individual, the birth date, the race, the marital status,the family status, the education background, the resume, the physical situation, the financial information and so on which would identify an individual in any circumstances separately or compared to other information. The characteristics of the personal information includes: the subject of it is a natural person;it is able to identify an individual directly or indirectly;it is objective and it has the nature of both personality right and property right. According to different standards the personal information can be divided into different types.The personal information reflects the personality interests and should be the object of the personality right.Second part, the inspection of the legislative models of personal information protection. At present, the EU and the US legislative systems are regarded as representatives of two models of personal information protection legislation,and the Japan's legislative model is also distinctive.The US legislative model is benificial to the free development of the enterprise,at the same time, it also may cause partial enterprises to evade the law Unscrupulously and violate the rights of the information subjects; the EU legislative model can provide comprehensive protection for personal information,but it also could hinder the information's normal circulation and the free development of the enterprise;the Japan legislative model looks like the EU legislative model,in fact it adopted many US'legislative practice. It pay attention to both the limitation of the industry self-regulation system and the necessity of the implementation of the rules in accordance with the law and attempt to find a balance between the protection of the information subjects' rights and the protection of the free flow of information.Third part, the necessity of independent protection of personal information in China. Firstly, personal information is a concret personality interest and the right of the subject is a new and comprehensive concrete personality right.Existing personality right protection system can not meet the requirements of the protection of personal information, so it is necessary to protect the personal information independently. Secondly, the right of the information subjects is unique. The independent protection is not merely giving play to the features as much as possible but also helpful to the better protection of the right of the subject. Lastly, the independent protection of personal information has realistic necessary. It is benificial to the protection of individual rights, the promoting of the informatization, the international cooperation and competition, and the government information transparency.Forth part,reflection on establishing the institution of personal information independent protection in China.The abuse of personal information is very serious in our county and the lawmaking about personal information is hysteretic.The legislative model of personal information protection in China could refer to the Japan's legislative model and enact a law which not only regulating the personal information both in public sector and non-public sector but also encourging self-regulation in non-public sector. In the lawmaking,we should pay attention to the balance between the personal information protection and the public interest and the balance between the personal information protection and the flow of information.As to some specific institution,firstly,the principle of the personal information protection lawmaking could refer to the principle in the ,and at least includes the Limitation Principle, Data Quality Principle and Purpose Specification Principle;secondly,the scope of application of China's personal information protection law should includes not only both the public sector and non-public sector but also the computer processed information and manually processed information; thirdly, except the right of obtaining information, the right of correction and the right of preventing processing,the information subjects should be granted more rights.Lastly, the personal information protection lawmaking should consider the cross-border circulation of the personal information in order to deal with the challenge in the future.