On The State Protection Obligation Of Personal Information Right

In the information age,people's lives are increasingly online and data-based."No one knows if there is a dog on the computer," the question is outdated.Personal information protection is like Andersen's "emperor in new clothes" running naked in the eyes of the public.The rapid development of the information age and the lag of the law form asymmetry,which leads to frequent infringement of personal information and the failure of effective protection of the rights of information subjects.In addition to threats from the state,they are also infringed by non-Princess bodies,such as various commercial organizations,social organizations and individuals,especially in the information age.The latter accounts for the vast majority in quantity.?Personal information infringement in the private sphere should be regulated by private law,but on the one hand,because our country is in the embryonic stage of information industry,the government provides some preferential and protective policies for information processors,and the corresponding rights of information subjects are unavoidably neglected.On the other hand,the private law norms for the protection of personal information rights have only been realized in recent years.There are a lot of legislative loopholes in information protection,which can not protect citizens' personal information rights very well.Therefore,for the protection of personal information,it is wise to adopt the right-based protection mode and choose the path of basic rights protection.However,since the legal norms are all about the protection of personal information,scholars have doubts about whether personal information can become a right or even a basic right.The author demonstrates the existence of the right of personal information from the perspective of the generation of rights,and then demonstrates that the right of personal information has the quality attributes of the basic rights from the characteristics of the basic rights,and proves that the right of personal information is a basic right on the basis of the relevant provisions of the Constitution of China and foreign legislative examples.The contradiction of personal information right in the private sphere is mainly analyzed from two dimensions.On the one hand,there are conflicts of rights and interests between "individuals and institutions".That is to say,commercial organizations as information collectors,processors and users and ordinary people as information subjects have natural structural inequalities.Commercial organizations have high-end hardware equipment,excellent professionals and a large amount of capital input.However,the information subjects do not have these advantages,so it is inevitable that they do not have these advantages.It is necessary for the state to protect the rights of the information subject without affecting the free flow of information.On the other hand,the conflict of rights and interests between "individual-individual" means that the subject of victim's information has the right to control,control and exclude others from infringing on his personal information freely,but the infringer has the right to freedom of speech.How to balance the conflict between the two basic rights also requires the intervention of the state to balance.These two dimensions are classical constitutional propositions.At this time,the defensive function of basic rights can not cope with this phenomenon,so the theory of state protection obligation emerges as the times require.The duty of state protection derives from the objective value order of basic rights and is the intervention of the state in the private sphere.Under the tripartite framework of "victim-state-infringer",the state,for the purpose of protecting the people,balances the interests of both parties and fulfills the duty of protection.Under the typified allocation of public power,the state protection obligation of personal information right is mainly to legislate the right of personal information and formulate a complete legal system for the protection of personal information right;to ensure the operation of the legal system of personal information right by enforcing the good enactment law;and to implement the constitutional spirit contained in personal information right through legal interpretation,so as to achieve a comprehensive goal.Guarantee the right of personal information.