Research On The Dual Protection Approach Of Personal Data And Property Rights Of Personal Data Under The Cross-border Flow Of Data

Personal data has the dual value of personality interests and property interests.First of all,the personality interest in personal data is generally embodied as a kind of spiritual interest,and the protection of the personality interest in the data reflects the protection of personal freedom and personal dignity of the law.Secondly,with the development of digital technology,the economic value created by date flow is prominent,and the value of property interests in personal data has been valued by people.Personal data protection has always emphasized the protection of personal interests in the past,however,in the context of data flow,the protection of property interests also seems to be very important.There has always been a debate in theories about the protection of personal data with personality rights or property rights.The root of this controversy is the extension of the different interest characteristics embodied in personal data.The protection mode of personal rights of personal data comes from the "personal information selfdetermination theory" and "the theory of privacy rights" which emphasizes the control of personal data and the protection of private data;the protection mode of personal data property rights is to treat personal data as "property",and the core is to protect the"circulation" of propety.The adoption of anyone of the above modes to protect personal data will lose the other one,and cannot take into account the dual value of personal data.Therefore,it is necessary to build a diversified personal data protection model so that the different interests of personal data can be balanced.It is also needed to realize the use and protection of personal data,and the balance of interests between personal data subjects and industry subjects.However,under the two protection modes,who should be the first rank and who should be the second rank should be analyzed according to different data processing scenarios and different data types.The EU regards the protection of personal data as very important for historical reasons,and has even raised it to the height of "human rights".At the same time,the EU is a laggard in the digital economy.It urgently needs to develop the property value in data to revitalize the EU economy and promote the integration of the EU digital market.The above reasons have led the EU to adopt two double-protection paths in the General Data Protection Regulation(GDPR):On the one hand,the EU classifies personal data for protection,and in principle prohibits cross-border transmission of sensitive personal data to protect the personal interests in the data,while weakened control in the general data so that it can exert economic utility;GDPR grants natural persons comprehensive specific data rights,so that natural persons can fully control personal data during the whole process of data transmission,which is the embodiment of self-determination of personal data;on the other hand,GDPR has established the principle of default rights,design of "contract" mechanisms,and property rules to ensure the smooth "circulation" of personal data,using the "property rights" protection model thinking to develop the property interests in personal data.Promulgated in the "Civil Code of the People's Republic of China",Chinese personal data protection has basic provisions on the legal level for the first time.After the "Personal Information Protection Law" is promulgated,a framework for personal data protection in China will basically be formed.Overall,Chinese personal data protection legislation takes into account the balance of various interests and is a "good law" based on practice.As for the choice of the protection model dispute,China has adopted the solution of "commercialization of personality rights",and has recognized the personality interests of personal data in legislation while taking into account property interests.In the follow-up,China should continue to improve the rules for the commercialization of personality rights,and at the same time improve the design of rules for the protection of personal data and property interests in other regulatory legal documents,so as to better deal with the problem of personal data protection in the crossborder date flow.