Research On The Configuration Of Personal Data Protection Rules In China Under The C＆M Framework

With the rapid development of new technologies and applications of big data,the way of human connection and communication has undergone subversive changes.Personal data has also attracted increasing attention from all walks of life and become a hot spot pursued by capital.The "Decision" of the fourth Plenary Session of the 19 th CPC Central Committee also clearly requires that data should also be regarded as a factor of production by the market to evaluate the contribution and determine the remuneration according to the contribution.The Data Security Law also explicitly requires the establishment of a sound data transaction management system and the protection of data rights and other responsibilities.Starting from the problems existing in China’s personal data protection system in the era of big data,this paper identifies and defines the rights and interests of personal data.Personal data can be further divided into three categories for boundary rights and rights protection based on the different rights bearing on personal data and the different degree of close connection between different data and data subjects.On the other hand,property value is the most important attribute of personal data as a factor of production.Therefore,this paper adopts the C＆M Framework of law and economics to construct a personal data protection,development and utilization system with the protection of personal data rights as the core,including personal data property rules for the distribution of interests in the process of using personal data.Personal data liability rules based on infringement of rights;Regulation rules that regulate both trading behavior and punishment.To be specific,the protection of personal data in Chinese laws is between rights and interests.Although the right of self-determination of information such as access and deletion is stipulated,the dominance of personal data is weaker than ownership.Restricted by the level of social development and the limitations of subjective understanding,personal data has not been fully vested.As an important factor of production,personal data has multiple values of personality value,property value and public security,and its vested rights have become inevitable.The clear ownership of personal data is conducive to solving the rights and interests distribution mechanism in the process of its use and giving full play to the incentive role of the system.This paper divides personal data into three categories based on the degree of close connection between personal data and individuals: sensitive personal data,general personal data,and derived personal data,and then adapts to different legal rules for protection.With the help of C＆M Framework,the ownership of three types of data with different degrees of close connection with data subjects is defined from two aspects of reducing transaction costs and giving play to the role of institutional incentives.This paper argues that the allocation of personal sensitivity and general personal data ownership to individual citizens is more efficient and more conducive to the protection of civil rights;Personal data derived data is not closely related to the data subject,and in the process of data collection and processing,the data processor pays a lot of costs,so it should be configured to the data processor.As a factor of production,personal data has property value.Personal data is generated from citizens’ information,which involves citizens’ personality rights and interests;At the same time,personal data also has a significant impact on national sovereignty security.With the development of information technology,the weight of the three values is in a dynamic process.Therefore,the establishment of personal information right must carry out value selection and value balance.Therefore,this paper adopts the C＆M Framework of law and economics as a theoretical analysis tool to demonstrate the choice of relief rules for personal data rights.According to the difference of personality value,property value and security value contained in different personal data,and comprehensively considering the efficiency and security of personal data circulation,we choose the rule system that applies mainly property rules,supplemented by liability rules and regulated rules to regulate personal data transaction behavior.Property rules are mainly applied to personal data so as to form investment incentives to promote the legal circulation of personal data and to form a mechanism of interest distribution in the use of personal data.Liability rules are applied to derived data of personal data to prevent re-identification of anonymous personal data due to algorithm progress and algorithm discrimination by data processors.Responsibility rules are adopted to internalize the negative externality of personal data and prevent data processors from violating the rules and affecting the market order and national security.Finally,through regulation rules to achieve norms of behavior,behavior restrictions,through the state to establish norms of behavior,appropriate intervention on private transactions to prevent improper forces from destroying the order of transactions,the formation of substantial inequality and processing of consent rules,in order to protect national interests and social public interests.