Study On The Problem Of Evidence Owned By One Party In A Personal Information Infringement Lawsuit

Since Personal information exposure incidents frequently occurred in China,and the rights of information subjects are often damaged.The natural person who is the main body of information brings the lawsuit of infringement for gaining relief,but the information subject loses the lawsuit because the big enterprise with economic strength is the infringer and the information processing evidence is controlled by it,so the evidence is owned by one party.It is not only the unequal situation of offensive and defensive weapons between the two parties,the court is also chaotic in hearing such cases,due to the absence of the law on personal information.There is no agreement on the fault of personal information infringement lawsuit or the fact of cause and effect,so that the method of all courts differs in judge which resulted in different judgment in the same case.Thus,in order to solve the problem about the evidence controlled by one side,we should construct new constitute conditions for trial guidelines in the point of view of the burden of proof,meanwhile,improve the procedure of collecting evidence so as to enhance the party's ability to collect evidence.In this paper,the use of normative analysis,statistical analysis,comparison and document research with the actual method to demonstrate that how to solve the problem about the evidence controlled by one side in a personal information infringement lawsuit,which relieved the party's the burden of proof,balanced the position of proof on the two parties.There are forty thousand words in the text,expect abstract and references,which are divided into four parts:The first part: the realistic dilemma of problem about the evidence owned by one party in a personal information infringement lawsuit.In the case of the evidence owned by one party,the parties in the personal information infringement lawsuit have unbalanced burden of proof,and the injured party is unable to prove the "four elements of infringement",thus bearing heavy burden of proof;However,the current provision of evidence collection procedures cannot effectively solve the problem of the evidence owned by one party,and the injured party lacks of targeted evidence collection measures.The plaintiff can't collect evidence,thecourt have to decide against the plaintiff as require by law.The second part: the basic theory of solving the problem about the evidence owned by one party in a personal information infringement lawsuit.The infringement of personal information has the characteristics of concealment,technicality and non-regionalism.The infringer controls the process of information collection and processing,and the injured party cannot participate in the process,which cause the occurrence of the evidence owned by one party in the case of infringement.The current evidence collection procedure is weak in solving the problem of the evidence owned by one party in a personal information infringement lawsuit.The reason lies in the fact that China's evidence legislation principle stipulates the evidence collection method,but there is no specific operation process,which leads to the defects of the current evidence collection method.Inability of the injured party to produce evidence,especially evidence of fact of fault or causality,makes it difficult for the court to make a direct fair judgment.In view of this,the Supreme Court issued "pang moupeng case" as a typical case,and recognized the court's use of the fact-presumption method to infer the defendant,so as to solve the problem of the evidence owned by one party.The professional quality of judges in our country is uneven,so it is not advisable to adopt the discretionary method of the presumption of fact.Although this is an expedient measure,it also provided a legislative opportunity for the legalization of "fault presumption".The third part: the comparison of solving the problem about the evidence owned by one party in a personal information infringement lawsuit.To deal with the problem about the evidence controlled entirely by one side in a personal information infringement lawsuit,the Germany on the basis of General personality right system legislated fault conformation as the presumption of fault;the Germany also legislated Filing system ? the proof obstruction system?independent evidence process for enhance the party's ability to collect evidence,and developed the theory of primary-face proof to relieve the party's the burden of proof in causation.Unlike the Germany,the United States legislated different constitutive conditions of infringement in the Privacy system and publicity system.In the field of procedure,it endows the parties with strong evidence collection ability by stipulating the system ofevidence discovery,and develops the theory of self-evidence of facts to ease the parties' difficulty in proving causality.As for the tripartite relationship between the judge,the parties and the outsiders in the case during the investigation and evidence collection process,both countries show the relationship of the judge and the outsiders participating and cooperating to some extent.As for the problem of unbalanced proof ability caused by the evidence owned by one party,the two countries improve the parties' proof ability and at the same time start to reduce the burden of proof technology to reduce the difficulty of proof of causality.The fourth part: the improvement of system on solving the problem about the evidence owned by one party in a personal information infringement lawsuit.In the field of tort substantive law,China's personal information protection law has been put on the agenda.The legislation will be based on the classification of general torts and special torts in the current tort law.Tort of ordinary people apply the provisions of the general tort,tort of large enterprises should,as a special type of infringement to distribution of burden of proof,such as illegal behavior,damage fact and causal factor of the burden of proof shall be borne by the plaintiff,just causality requirements by adopting the working style of the burden of proof to reduce regulation for the injured party to provide preliminary evidence can prove the existence of causation possibility.The fault requirement is defined as the presumption of fault,and the infringer who controls the collection of information data proves that his behavior is lawful and faultless.In procedural law,it aims at strengthening the litigant's ability to provide evidence and standardizing the collection of evidence by the court,and constructs the pattern of the litigant,judge and the outsider's collaborative collection of evidence.Uniform legislation provides for the investigation order system to enhance the litigant's ability to provide evidence;Defining the scope of the judge's interpretation to guide the parties to obtain evidence correctly;We will expand the scope of application of the filing system and the proof obstruction system,bring the case outsider into the scope of application subject,and bring the electronic evidence into the scope of application category.Third party preservation institutions are added to improve the evidence preservation system.