Research On Legal Issues Of Personal Data Exchange

China and even the world have already entered into the big data era.The generation of the massive data and the development of the data mining technology have changed the way of people's living style.They find that the web has became more familiar with themselves and living has became more convenient.The data mining technology largely improves the value of personal data,which not only brings a commercial transformation to enterprises but also provide the whole country with the valuable material.At the same time,amounts of personal data are being abused and fraudulent sold.People have began to worried about the privacy safety.They started to recall the past time.The exchange of personal data has revealed its flaws:in theory,the legal nature is not clear;in legislation,the allocation of the rights and obligations is not clear;in justice judgments are in a dilemma.All those flaws limit the development of the personal data exchange.The Cyber-Safety Act of China stipulates the principles of the collection of the personal data.The General provisions of civil law stressed the significance of the protection of personal data.However,those provisions fails to provide the personal data exchange with sufficient legal protection.This thesis is aimed at solving above problems by locating the personal data in civil law,allocating the rights and obligations of the parties of the personal data exchange and exploring the way of justice practice,not only protecting the interests of the parties but also facilitating the freely circulation of data.The first part of the thesis is a basic knowledge introduction of the personal data and the personal data exchange.The issue of personal data exchange is concerned with several subjects,including law,information management,sociology...different from the traditional concept of law.However,with the development of IT,the codification of civil code is required to respond to the internet era.To discuss this issue,we should define its concepts in law.Through the analysis of documents,the author considers that the big data is a data application mode which gain value from the massive high-speed varied information assets by the specific technology and analytical method.Data is a carrier as well as the information content,both meaning is same in internet context.The personal data is recorded in electronic way,which can directly or indirectly identify a natural person's identity,life,career,social activities etc.Defining the tradability of the personal data is the precondition.This part definite the tradability by introducing the substantive characteristics and exchanging practices.The second part is posing questions by introducing the current situation and plight.At present,the trading platforms of personal data are blooming everywhere.The Exchanging mode includes off-line and on-line exchange trusteeship exchange and customized exchange.The major problems cover three aspects:theory,legislation and justice.Theoretically,the civil law lacks the stipulation of the legal nature of personal data.Legislatively,its lacks the mandatory rules of the transaction parties.In the judicial,there are problems of the interests of type,testification,relief method,the ignorance of personal benefits and the inclination to negotiation exist in judicial practice.The third part is the analysis of the above problems in three aspects.Firstly,several theories of the legal nature of the personal data are discussed,including the personality right,the property right,the privacy right,the constitution human right and the new right.The author regards the personal data right as an independent personality right,which should be recognized by the personality right part of the civil code.Secondly,domestic and foreign laws are researched comparatively.GDPR will take effect soon.By studying its stipulations and being compare it with Personal data security specification,we could define the rights and obligations of the parties are defined,offering reference to the protection to right of control and decide of the data subject.Thirdly,there is a further analysis of different practices in justice.We can institute civil public interest litigation to solve the disputes under the imperfect condition of law.Taking advantage of shifting burden of proof and enhancing relief efforts to protect personal data subject.Furthermore,drawing a conclusion that using Anti-Unfair Competition Law to solve disputes is more suitable comparing to the Antitrust Law.The Final part is designed to establish the legal rules of the personal data exchange to solve the above problems.There are two steps:firstly,we should define the legal nature of the personal data in personality right part in the civil code.Because of the double nature of the personal data and the importance of its personality interest,considering it as an independent personality right is reasonable.Owning to the limited space of the civil code and the complexity of this issue,enacting Personal Data Protection Act is necessary,defining personal data subject's rights,increasing its degree of involvement and control in the personal data exchange.Finally,the rights and obligations of the data controller and data recipient should be stipulated in different exchange mode.