Study Of Personal Information Protection System In The Civil Law Perspective

In the digital media era, with the development of information technology bringing to the mankind various conveniences, we also begin to feel that it has become an extravagant hope to enjoy the reclusive life style and the peaceful mind. All people in this society have experienced various problems caused by the disclosure of personal information. Fraudulent text messages, soliciting calls for goods or services, and other ways of abusive misuse of personal information have brought us endless troubles and headaches. The strong desires of the business enterprise to obtain personal information show the proprietary values vested in personal information. On one hand, based on the close relationship between personal information and its principal, once certain direct personal information (e.g., names and personal images) is used on some specific goods or services, the general public will associate the principal of the personal information with the specific goods or service, which will improve the market recognition of the goods or service, and bring competitive advantages to the provider of the goods or services. On the other hand, during the world web era, the technical barriers are not longer in existence in tracking in large-scale the consumers'on-line activities in order to understand their purchasing habits; such personal information indirectly obtained through the information tracking technology, once combined with other information of the principals, such as cell phone numbers, email address, or mailing address, will provide important basis for such providers'market strategies, including advertising promotion and personalized services. This is an important incarnation of the proprietary value of personal information.Under traditional civil law, it is a mainstream view and basic paradigm to divide civil rights into two categories:proprietary rights and personal rights. Under less-developed economic situation, people's cognition on the value of personal information would mostly focus on its personality "logo" function. Therefore, the personal information is protected more from the perspective of personal rights by viewing personal information as "personal element," and viewing the value of personal information as "commercialization of personal element" or "commercial utilization of personal rights." Thus, the separate legal status of the personal information's proprietary value is not recognized; the proprietary value of personal information is only treated as "derivative interests" of personal interests or personal rights. However, with the society stepping into the web media era, the proprietary value of personal information has become more and more important; the theory categorizing personal information as "personal rights" is facing more and more challenges. The traditional insurmountable boundary between personal rights and proprietary rights has been diluted in some areas, with overlapped area between personal rights and proprietary rights.The author believes that personal information is itself a conveyor of combined interests, which reflects both the principal's personal interests and proprietary interests. Concerning its legal characterization, it should be categorized as a personal intangible property connected with its principal; therefore, personal information shall receive double protection as both personal rights and proprietary rights.This paper analyzes the civil law protection scheme on personal information by focusing on the legal characterization of personal information, hoping to provide constructive advice to the establishment and improvement of China's legal protection scheme on personal information.This paper is comprised of three sections—Introduction, Discussion, and Conclusion. The discussion section includes 5 Chapters.Chapter 1 is the definition of personal information; from the perspective of the relevant concepts of personal information, it provides brief discussion on the characters and categorization of personal information. Through analysis, the author believes that the definition of "personal information" shall base its "recognizability" as its core element, the denotations of which shall include all the information that can identify, directly or indirectly, the principal, including the individual's name, birth date, ID number, characteristics, finger prints, marriage, family, occupation, education, health, medical history, financial information, and social activities, etc.Chapter 2 discusses the legal characterization of personal information. There are three representative views on the legal characterization of personal information: "ownership object doctrine," "privacy right object doctrine," and "personal rights object doctrine." Under "ownership object doctrine," personal information is treated as the object of ownership, personal information is categorized the realm of "property" under civil law. "Privacy right object doctrine" and "personal rights object doctrine" both hold the view that personal information is personal interests; while the former believes that it is privacy right, and the latter believes that it should be an independent personal interests. After analyzing the doctrines, the author believes that there are flaws with every doctrine in fully defining the legal characterization of personal information. The author believes that, under the background of information era, personal information is itself a conveyor (or object) of combined interests, which reflect the personal interests of the information principal, and meanwhile are a type of proprietary interests. From the perspective of such characters of personal information as independency, value, exchangeability, non-materiality, personal information meets the general characters of intangible property; due to the indivisible relationship between personal information and the subject it so belongs, the legal characterization shall be categorized as personal intangible property.Chapter 3 is the legislation and comparison of personal information protection in other jurisdictions. Through comparing the current legal protection schemes in European Union and United States, this Chapter reveals that due to the direction and influence of personal right theory, both EU model and US model fails to provide direct recognition to the proprietary characterization of personal information, or provides proprietary right protection to personal information; as a result, due to such legislative exclusion, the abusive misuse and infringement of personal information is getting more and more serious.Chapter 4 is on China's legalization on personal information protection. Basing on the current legislative situation of personal information protection, this Chapter discusses the necessity in establishing China's legal protection scheme on personal information. It also provides advice on the relationship between person information protection legislation and China's current civil law system.Chapter 5 provides proposals and advice on how to establish Chinese protection system on personal information; from perspectives of both personal right protection and proprietary right protection of personal information, this Chapter analyzes the theoretical foundation for providing dual protection of personal information and provide detailed proposals and advice on systematic establishment.