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Research On Legal Protection Of Cross-border Flow Of Personal Financial Information

Posted on:2021-05-10Degree:MasterType:Thesis
Country:ChinaCandidate:Q Y WangFull Text:PDF
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The trend of financial liberalization is becoming more and more intense in the context of the era of big data.The cross-border flow of personal financial information has become the daily operation of the global financial system,and the issue of personal personal financial information protection has become more serious.The complex attributes of personal financial information,the aggravation of the unequal status between financial institutions and financial consumers,the intensification of the contradiction between national and social interests and individual interests,and the fierce game of financial information among countries all reflect the urgency of improving the legal system and strengthening international cooperation under the cross-border flow of personal financial information.Theoretically,the cross-border flow of personal financial information can be divided into three forms,behind which are the manifestations of three conflicts of interest.The first is a conflict between the private rights to a conflict between financial institutions and personal financial information as an example.The personal financial information is the basis and the wealth of the original financial institutions.Itis collected and used within the group and the unaffiliated third party through the convenient information technology,and the financial consumers as amateur and even don't realize is being violated is regarded as the default authorization.Financial institutions' obligation to protect personal financial information has different legal attributes and binding effects to different degrees in different countries and regions.The risk cost and litigation budget behind this further weaken financial institutions' attention to personal financial information,but also force legislation to increase the obligation of financial institutions.The second is the conflict between public power and private rights,with the national and social interests and the conflict between personal financial information,for example,financial regulators,jurisdiction expansion,increase in the number of financial markets intervention significantly increased,but,on grounds of national security and public interests,allowing personal financial information to flow from financial institutions to the flow of public power departments and social organizations,will not be beneficial to the protection of information independent rights of financial consumers,and also to the relief of the damage to personal financial information infringement.The third is the conflict between public power and conflict of interest between countries,for example.International financial trade in services,personal financial information dispute with the spread of cross-border flow path,countries,information resolutely safeguard its own financial sovereignty sovereignty and judicial sovereignty,dispute settlement mechanism and outside the jurisdiction of the executive force is not enough to cope with the frequent conflicts and legal application,eventually evolved into national competitiveness comprehensive conflict,easily giving information hegemony and financial terrorists an opportunity.In practice,the legislation of personal financial information protection under the cross-border flow is a mixture of personal information protection rules,financial consumer protection system and information cross-border transmission restrictions,taking the most typical European and American model as an example.The first is the EU model.The General Data Protection Regulation is the latest convention forgeneral information protection.It combines the "sufficient" protection conditions,standard contract clauses,binding company rules and other characteristic systems,and cooperates with special regulations for personal financial information to form a legally effective,regional and unified protection system,setting strict protection level requirements and penalties for the cross-border flow of personal financial information.But the cost and difficulty make this model difficult to promote worldwide.The second is the American model,establishing a systemic framework by the Financial Services Modernization Act,and many other legislation,guiding the industry self-discipline to supervise financial institutions to protect the consumer rights and interests.At the same time,the cross-border flow of information is regulated through multilateral agreements and rules of international organizations.The ultimate purpose is to hope that personal financial information can achieve free cross-border flow under its own institutional framework,in order to maximize economic benefits.Both the European and American models reflect the expansion of public power and the difficulty in enforcement under the protection of personal financial information and privacy,and their respective national interest orientation is obvious,which directly leads to the invalidity of the Safe Harbor Agreement and the replacement of the Privacy Shield Agreement,and shows the difficulty in international rule making under the cross-border flow of personal financial information.In terms of methodology,it is indispensable for the problem of personal financial information protection under the cross-border flow to improve domestic regulations and enhance international cooperation.First,from the domestic level,only domestic has sufficient security legislation and system construction,to make their own financial enterprises and institutions to to submit their status documents about personal financial information protection to other government departments when expanding overseas business.Also financial enterprises and institutions from other countries can understand national conditions to enter the domestic financial market.Legislative protection requires specialized and high-level legislation on personal financial information,supplemented by detailed administrative regulations to help implement.System construction requires financial institutions to strengthen self-discipline awareness,establish internal control system,and fulfill personal financial information protection obligations.At the same time,a unified and authoritative national supervision and law enforcement agency should be established externally to timely find and deal with the loopholes in the regulation on the cross-border flow of personal financial information,strictly punish and guide the self-discipline of the industry.Second,at the international level,in the current era of financial globalization and liberalization,no country can stay immune.Compared with the fierce financial information game,it is more important to strengthen international cooperation.If the interests of the country are considered only,there may be two extremes,one is the localization of extreme personal financial information,the other is the free circulation of extreme personal financial information.The former will create new trade barriers,while the latter will seriously violate the human rights value of personal financial information,which will only hinder the realization of national interests.Only explore diverse scientific mode of international cooperation,adjust the legal conflict between countries,seek interests balance,can stand in the forefront of the information times,safeguard the personal safety and national security of the country's financial consumer,at the same time seeking international order in the field of information,promote the solution of the personal financial information under the cross-border flow,finally promote the development of world economy.Therefore,in order to balance in the context of cross-border flows benefit development and privacy protection of personal financial information in this article,conflicts of interest from the theory and practice are repellent compatibility of Europe and the United States model,combining the current situation of legislation and system construction situation,explore for China's financial consumer privacy protection under the cross-border flow of personal financial information methods suitable,to support China's great-power status in international financial service trade.It is mainly divided into four chapters:The first chapter is an overview of the cross-border flow of personal financialinformation.By studying the connotation and status quo of personal financial information and cross-border flow of personal financial information,this paper analyzes the problems of personal financial information protection under cross-border flows,and determines the position and methodology of the problem.First,it is clear that personal financial information has complex attribute characteristics,adding huge property benefits to the characteristics of traditional personality dependence,and being able to identify the degree of financial consumers' participation in financial activities and involvement in the financial field.The cross-border flow of personal financial information,as part of the cross-border transfer of data,is therefore more special.Secondly,it is clear that in the context of cross-border flows,ensuring the security of personal financial information is a prerequisite to promoting orderly flows and the safety of financial activities.It is necessary to prevent financial consumers' information rights and interests from being used by overseas institutions and other governments in cross-border financial services,harming national economic security and national security.The second chapter is a theoretical analysis of the cross-border flow of personal financial information from the perspective of interests,mainly from the perspective of conflicts of interest between financial institutions and financial consumers,between national governments and financial consumers,and between national governments.First,between financial institutions and financial consumers,the development of information technology and the expansion of financial services have exacerbated the unequal status between the two.Therefore,the personal financial information protection obligations of financial institutions must be strengthened,which is also a manifestation of their social responsibility.Second,between the national government and financial consumers,although national security and social public interests are higher than personal interests,public authorities have the responsibility to protect financial consumers,so they need to improve their credibility of intervening in financial activities by improving institutional policies.Third,between governments of various countries,although financial sovereignty,information sovereignty,andjudicial sovereignty conflict are fierce,for the purpose of financial information security and international economic security,more international cooperation must be adopted to reach broadly applicable jurisdiction and enforcement rules.The third chapter analyzes the extraterritorial experience of cross-border flow of personal financial information from European and American models.This paper mainly starts from the legislative status quo of the domestic laws of the EU and the U.S.,analyzes and compares the specific systems,expounds the evolution of international cooperation with each other,and explores the defects in the legislative purpose and implementation details under different models.The EU model is characterized by top-down,government-led,legislation-led.The American model is characterized by bottom-up,legislation guiding and industry self-discipline.The American idea of freedom and openness and the European Union's idea of priority protection are both based on their own national conditions.The consultation and cooperation between Europe and the U.S.for the common interest of economic development will bring new ideas to the international regulation of the cross-border flow of personal financial information.The fourth chapter discusses China's current status and suggestions for cross-protection of personal financial information under cross-border flows.Based on the analysis of China's existing legal system,this paper consider the shortcomings of China's current system,and propose suggestions to improve China's personal financial information protection rules from three levels: domestic legislation,supporting systems,and international cooperation.The first is to establish a legal system centered on the protection of financial consumer information.At present,the protection of personal financial information in China is undergoing continuous exploration and accelerating the process of legislation.With the Basic Information Law as the center,specialized legislation such as departmental regulations is gradually increasing.Based on this,put forward more ideas for the legislative model,legislative principles and basic issues.The second is to build a supporting system with security protection obligations at the core,divided into two levels of planning: industry self-regulationand government guidance.Financial institutions must strengthen internal system construction,especially multinational financial groups must effectively fulfill their obligations to protect financial consumers.At the same time,external law enforcement agencies strengthen supervision.The third is to strengthen international cooperation in personal financial information protection issues.It is divided into two parts: signing bilateral or regional cooperation agreements and exploring cooperation mechanisms of international organizations.Through these suggestions,this article looks forward to the personal financial information protection system in China's cross-border flows,hoping to balance power distribution and mitigate conflicts of rights.
Keywords/Search Tags:Personal financial information, Cross-border flow of information, Financial consumer
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