Study On The Protection Of The Individual Credit Right In Personal Credit Investigation

In recent years, our personal credit investigating industry has developed faster and faster. At the same time, credit owner’s individual credit right has always been infringed, which makes credit owners miss precious opportunities and lose many economic interests. The root cause why the similar infringement occurs frequently is that our current legal style, specific rules and relief mechanism haven’t given strong protection and relief to credit owner’s individual credit right. Our country should adjust current laws and regulations, specific rules and judicial remedy mechanism to strengthen protection and relief to credit owner’s individual credit right.This paper starts with the challenges the individual credit right in personal credit investigation faces, analyzing the reason why the individual credit right in current personal credit investigation hasn’t been protected powerfully. On base of learning from the foreign advanced experience, we can build our legal style of the protection to the individual credit right in personal credit investigation, design specific rules of the protection of the individual credit right in personal credit investigation system and improve the judicial remedy mechanism of the individual credit right in personal credit investigation.This paper is divided into five chapters:Chapter I expounds the challenges which the individual credit right in personal credit investigation faces, and summarizes the manifestation that providers of credit information infringe individual credit right, personal credit agencies infringe individual credit right and users of credit information infringe individual credit right with specific cases and the shortcomings of judicial remedy of individual credit right.Chapter II analyzes the reason why the individual credit right in personal credit investigation hasn’t been protected powerfully. First, we analyze the reasons on legislative: 1. Our civil law still adopts indirect protection mode of credit right; 2. The legal rank of the regulations is relatively low and the regulations lack of systemic and operability. Secondly, we analyze the reasons on specific rules: 1. The liability for providing wrong individual credit report is light; 2. The objection procedure lacks some important steps; 3. The assessment of credit standing is unfair; 4. The protection to the right to know is far from comprehensive; 5. The sharing of personal credit information is not always expedite; 6. The rules on the safeguards are very indistinct. Thirdly, we analyze the reasons on judicial remedy mechanism: 1. The standard of subjective fault form in this kind of case is not unified; 2. The rescue method has many limitations.Chapter III discusses how to build our legal style of the protection to the individual credit right in personal credit investigation: First, Chinese Civil Law Code should adopt direct protection mode on credit right. The stipulation of credit right should be stipulated in Personal Right Part of Chinese Civil Law Code and the content of this stipulation should at least include definition and empowerment of credit right. In addition, other supporting legal provision should also be stipulated in Chinese Civil Law Code. Secondly, Personal Data Protection Law and the regulations of Credit Management Regulation should be enacted as soon as possible in order to make up for the blanks of the existing regulations.Chapter IV designs the specific rules of the protection to the individual credit right in personal credit investigation system. In the respect of the duty and the responsibility of personal credit agencies, there are the following two specific rules: First, only when personal credit agencies exercise reasonable duty of care, they may not assume tort liability for providing wrong individual credit report. Secondly, personal credit agencies should bear the burden of proof in the objection procedure and fulfill the obligation of notification in the objection procedure. In the respect of the duty and the responsibility of users of credit information, there are the following two specific rules: First, users of credit information should treat every individual credit report fairly. Secondly, if users of credit information make an adverse decision on one person according to one’s individual credit report, it should fulfill the disclosure obligation. In addition, there are following two supporting systems: First, the perfection of the legal system of personal credit information sharing should start with two key points. Secondly, the security measures which commercial banks and personal credit agencies should take and their standards must be specified comprehensively.Chapter V improves the judicial remedy mechanism of the individual credit right in personal credit investigation. When our courts hear cases of the infringement of credit right in personal credit investigation, they should try to follow these ideas and practices: First, the subjective fault form in this kind of cases includes intentional misconduct and gross negligence. Secondly, the judicial relief pattern which focuses on both economic rescue method and noneconomic rescue method should be adopted. Thirdly, when courts use the noneconomic rescue methods, they should focus on restoration of credit conditions and embody each kind of noneconomic rescue method. Fourthly, when courts use the economic rescue methods, they should be cautious about applicable standard of economic rescue method and compensation amount.