Research On Civil Right Confirmation Of Personal Information

Big data technology has tapped the potential economic value of personal information,and it has also triggered a surge in personal information infringement cases.Article 111 of the General Provisions of Civil Law 2017 clearly declares that personal information in China is protected by law,but the provisions do not define the identification elements,rights attributes,and consequences of infringement of personal information.Article 1034 of the Draft Civil Code inherits the General Provisions of Civil Law 2017 and protects personal information in the mode of behavioral norms rather than rights.Other relevant laws,such as the "Internet Security Law" and "Tort Law",also face the dilemma of infringement relief of personal information in judicial practice.The article starts from the choice of the path of civil regulation of personal information,discusses whether personal information is a benefit or a right,that is,the choice of rights path and behavior path,and on this basis,discusses the object of personal information rights and the allocation of power,and finally comes to China The Civil Code establishes rules for the confirmation of personal information rights in the context.From the perspective of comparative law,the remedies for personal information infringement in different countries are different,and the legislative styles are different.The United States uses information privacy as the basis for rights,and implements decentralized legislation and industry self-discipline models to protect personal information;Starting from the general personality right,Germany abstracts the core right of information self-determination,focusing on the construction of information protection order;the EU abstracts the framework right of personal data protection right,and realizes the regulation of the behavior of interest game subjects in the flow of information.The current situation facing our country is: first of all,Legislation is decentralized and behavior regulation is the main mode.The basis of the right to request personal information protection is unclear,and the object of the rights is uncertain.Although the "General Principles of Civil Law" has not completed the construction of the "personal information right",it has laid the tone for the protection of personal information as a civil interest.Secondly,current judicial practice carries out personal information infringement relief under the dual protection model of "private rights and other specific rights + tort liability",but this model not only cannot cover the relief of all information intrusion,but also is inconsistent with Chinese private law rights system.The disconnection of legislation calls for a new understanding of the personal information rights system.Reflecting on the dilemma of civil rights determination of personal information in China,there are two major factors: the invalidation of the rules for the separation of rights and interests in the application of personality and legal benefits and the unclear object of personal information rights.The legal recognition of new interests faces the essential concerns of the generalization of rights and the methodological flaws of the uncertainty of the standard for distinguishing rights and interests.At the same time,the difficulty in identifying the object of personality right has affected the determination of the object of personal information rights.The way of expressing the object of rights in legal relationship is not applicable to the process of personal information right confirmation.The unclear object is directly manifested as the difficulty of determining the boundary of ownership.The privacy model and the general personality model with higher voices in the theoretical world have their own advantages and disadvantages.However,in the face of the increasing risk of information infringement in China,we still face the difficulty of relief.First of all,the privacy right model relies on an expanded interpretation of privacy,which is inconsistent with the existing system of personality rights in China;at the same time,the harm of personal information that does not involve privacy in practice is intensifying.Secondly,the effectiveness of the general personality right model depends on Germany’s detailed interpretation of the general personality right.But in our country,the general personality right cannot cover the property attributes of personal information whether in legal dogmatics or in legal economics.Excluding the above two paths,combining the experience of comparative law,taking "specific personality rights" as the basis of rights,and enforcing the regulation of the use of personal information in the flow of information,and then forming the right contents bundle of personal information can become an expression of Chinese personal information rights system mode.The failure of the methodology and the ambiguity of the right object hindered the road of personal information confirmation.The resolution of the two major problems corresponds to the clarification of two sets of concepts.Firstly,the correct analysis of the nature of rights and the proper use of rights is the correct response posture in the face of "the struggle for rights and interests." Analyze the process of the transformation of personality interests into personality rights.The clearness of objects and the generation of positive power promote the entitlement of personality interests.Personal information carries the function of outline personality images,and the boundaries of ownership are relatively clear.These two characteristics give The legitimacy of the right to personal information.Second,the explicit definition of the right object depends on the determination of the three concepts of "personal information itself,the interests behind personal information,and personal information rights object".Specifically,personal information is the carrier of rights,and the protection of interests is the purpose of rights.Taking the theory of object elements as the theoretical basis,the object of personal information rights should be personality elements and property elements.The distribution of personality elements and property elements in different fields makes personal information contain three different interests: personality interests,property interests,and public interests.The interests of all parties outline the basic framework of personal information rights in interweaving and balancing.As a framework right,the system of contents will become the legal expression of personal information rights.The construction of the personal information power system needs to clarify the power configuration rules and specific content.The rules for the allocation of right need the benefit measurement method and the perspective of factor allocation: personal information with a high personality value should strictly regulate market transactions;for personal information with a low personality value,market restrictions can be relaxed to bring out economic value.The protection of public interest should be interspersed throughout the protection of personal information rights.Taking information transfer as a clue,there are negative contents and positive contents in personal information rights.Positive powers include the right to self-determination and information query,the right to request compensation,the right to correct and complete information,and the right to delete information,etc.Negative powers include the right to block information for information processing that meets a specific purpose,and the right to confidentiality of information that needs to be secured for information flow.Starting from a case,constructing the system of personal information contents in China is not only conducive to the type analysis of personal information infringement in practice,but also can examine different types of tort Rules of refereeing.