Legal Issues Of Personal Information Protection In The Civil Law Perspective

As an important social resource,Personal information has become the object of an integral part of people’s consumption in the information age. But the leakage of personal information, the stolen account of computer, spam and other personal information of frequent violations occur frequently, which harass every one of us and make people feel restless, panic, loss property. It should pay attention to Personal information protection of natural human dignity and personal freedom. However, in a large amount of personal information infringement cases, few people can get tort relief. The reason has two: on one hand, our legislation and judicial don’t define clearly; on the other hand, our legislation and judicial protect personal information by privacy, this has resulted in different sentences of cases of infringement of personal information and shortage of message body personal information is not fully protected.To protect the personal information in law should define the legal definition of personal information, which defines the types and the scope of the legal protection of personal information. However, in our legislation, the definition of personal information is too vague and abstract, cannot settle a simple dispute case of personal information protection. Through the analysis of relevant case overseas, we can find that the concept of personal information still require further clarification. My point is that personal information is all the natural and person-related information that can identify the natural person, include Identity card number, date of birth, the gene sequence, passport number, telephone number, name, fingerprint and so on. The "person-related" can be considered from the "content" or "purpose" or "result"; meeting one of the factors can be identified as having a "personal relevance". "Identification" can be considered by objective methods: If information controller still cannot distinguish the person by exhausting all the rational methods, it indicates that the information is not personal information, in turn, it is.The current definitions of right attribute of personal information mainly include the following three important doctrines: "privacy right" "personality right" and "property right". Privacy derives from the common law, essentially equivalent to personality right in civil law. Therefore, the dispute of right attribute of personal information is that the personal information is belonging to personality right and property right in the traditional rights classification. The dispute occurred in that personal information has property interest. By clarifying concepts and features of personal information, we can find the personal information is closely related to personal with a strong personality. Their Property interests are not a natural in general merchandise, but the natural consequence of identification. Personal information itself does not have commercial value, and its commercial value only released by locking specific individuals. Therefore, the attributes of personality is the main source of personal information property interests, which means property interests of personal information without independence are subsidiary interests of the personality right. The personal information is longing to personality right.At present, China uses privacy mode to protect personal information. But unlike common law, there are differences on the orientation of privacy and personal information, the former focusing on the "not-public", the latter focusing on the "informational self-determination", which led to a lot of the realistic limitations of privacy mode in personal information protection in China. Although privacy can play a function in the protection of personal information, but there is still a gap between the actual demand of info-owner and reality. And as a specific personality right of privacy, its connotation expansion has its established boundaries, it cannot close the gap by explaning the right to privacy.In view of the defects of privacy in personal information protection, I think that we can learn from Germany’s personal information protection mode, using general personality protection mode. In legal logic, compared with the traditional right of privacy, on the one hand, the general personality right can open up a broader scope of personal information protection; On the other hand, the general personality right can provide protection of property interests for personal information. The implementation of the scope of protection of personal information included in the general personal rights merely provides the possibility to remedy the infringement of personal information. General personal right is a kind of framework rights, which is something like general clauses. To protect personal information by general personal right need to balance the interests of all parties by using interest-balancing method.Personal information transfer process involving multiple body, the most obvious confrontation between information subject and information controller. The demand of information subject is "hidden", the demand of information controller is "use". In society, the interests of the same object needs to meet the interests of the exclusive. Personal information to meet the interests of one party will lead to lack of the other party. When there is no law to regulate them, carrying out unreasonable benefit distribution will exacerbate conflicts. On one hand, information subjects are infringed like personal information being illegally collect, trade; one the other hand, information controllers derive substantial economic benefits. Law pursuits of interest balance. Promote the transfer of personal information in the interests of a more rational allocation and balance through the design of specific infringing rules.In the specific design of tort rules in china, I think personal information infringement should adopt fault liability principle. When the personal information is violated, it is presumed that the person is in fault. At the same time, interest-balancing method implements the four specific elements: 1.Fault; 2. The tort action; 3. The damage fact. 4. Causality between the tort action and the damage fact. In terms of fault, the duty of care of actor has two standards: good administrator’s standard and legal standard. Legal standard has priority over the good administrator’s standard. When there is no law, it is applicable to good administrator’s standard. In the term of tort action, it includes the improper collection, improper use, and improper management by dividing of personal information infringement procedure. For the fact of damage, should adopt "self justifiability damage" theory. As long as the infringement fact of personal exists, you can ask the defendant to bear the corresponding tort liability without the detailed proof of loss because of the defendant’s wrongful act. In the term of causality between the tort action and the damage fact, personal information infringement elements of the wrongful act and the injury determination is not the fact that the special nature of the relationship between cause and effect, applicable to the general theory of causation.