Research On The Civil Law Protection Of Personal Information

With the rapid development of information society,the collection、utilization、transmission of the personal information is becoming more and more rapid and low-cost. Our society has a increasing demand for the personal information,as a result the personal information has been abused,such as spam message and crank call has influenced our normal life, and become a potential danger to our society. So our personal information has a urgent need for protection by laws. The protection of personal information relates to many sector approaches, including civil law, administrative Law, criminal law, but clarification of the fundamental problems on civil law is the foundation of law protection. This article focuses on the civil law angle, hoping to clarify the definition and legal nature of personal information and help with the legislation of the personal information protection.In the section of introduction,according to the current social situation that we are in the personal information crisis and the judicial actuality, the author pointed out that the personal information needs to be protected by the civil law. After literature review on the study on personal information protection, using the comparison research methods, case analysis method to discuss the personal information protection. On this grounds,the author raise the following questions: What is the legal nature of personal information; how to protect personal information in the civil law system; what is the statue of legislation of the personal information protection and how the legislation should develop to protect the personal information. There are four chapters besides the introduction.In the first chapter, it studies on the definition of the personal information. First of all, The so-called personal information refers to any identifiable objective information which includes natural person’s name、gender、health data and so on. Secondly, it discusses the legal nature of the personal information on the theory that the personality power of the personal information and the property rights of the personal information. The legal nature of the personal information includes person attribute and the property attribute.In the second chapter, it analyzes the legislative philosophy and the legislation model. Firstly it compares the legislation both at home and aboard. In the first section,on the research of china’s legislation, it lists some of China’s current effective laws, china has accelerated the legislative process, there are many legal documents protect the personal information,but it still lacks of civil law protection. In the section of introduction of foreign legislation, it introduces the “the European Union pattern” and “the American pattern”. The former pattern of protection formulates a unified law, and Set up a special agencies to protect the personal information. the later pattern distinguishes the public department and the non-public department, using the way of legislation and the self-discipline to protect the personal information. Finally a personal information law is expected to be formulated to protect personal information. And this law should balance the personal information right and the personal information circulation.The third chapter focuses on the civil law system protection which clarifies the right of personal information. Both the property right and the right of personality are in short of protecting the right of personal information comprehensively. The property right try to put the right under the right of ownership,personal information property rights,intellectual property, but they all neglect the person attribute in it. Although the right of personality can offer a more reasonable way, but it also has it’s own limitation. The general right personality right is the foundation of the right of personal information, but it is too abstract to offer a comprehensive protection; the right of privacy can protect parts of the personal information when they are coincident, but they are so different in the definition, remedy and the legislative philosophy, both Germany and American has acknowledged the property rights of the personal information. As personal information has the person attribute and the property attribute, the personality power of the personal information is the basis of the personal information,so we can and we should obtain the protection from the general personality rights. So the article suggests that the civil law should acknowledge the right of the personal information, and distinguish personal information right from the right of specific personality.The fourth chapter analysis the methods of civil law protection of the personal information, the protection of the personal information on the civil law should be completely covered. The protection system should include system of contracts, Unjust Enrichment System, liability for tort. Firstly it studies on the personal information right under the contract law. I propose to some general civil rules in information application license contract. Secondly with the perspective of balance in tort law, classification of torts and application of rules of penal remedy. Thirdly Unjust Enrichment System requests the unjustly enriched party to return the property interest to the injured party.