Constitutional Basis For The Right To Protection Of Personal Data

In the context of the personal information protection legal system that has taken shape,it is important to explore what is the basis of the right to personal information protection,in order to fully explain and effectively regulate the core concepts of the system.It is an important proposition for constitutional law to explore the constitutional basis for the protection of personal information and how to make the law on the protection of personal information more appropriately integrated into the constitutional legal order.The mainstream view is that civil rights(interests)should be used as the basis for the protection of personal information,but there is room for reflection on this view at both the theoretical and practical levels.Based on this,this paper attempts to elevate the protection of personal information to the level of a fundamental constitutional right,using its subjective right of defence function and the negative and positive obligations of the state corresponding to the objective value order as the two main lines,and on this basis,to consider the restrictions and conflicts of the fundamental rights of personal information,and to balance the private law mechanism and public law mechanism of personal information protection,with a view to establishing a set of stronger foundation,more rigorous structure and better content.The first part of the article rethinks the nature of the rights of personal information.The first part of the article reconsiders the attributes of the rights of personal information and analyses the civil rights and fundamental rights of personal information.It also explains the dual nature of the fundamental rights of personal information in relation to the framework of German fundamental rights doctrine,and further explains the advantages of the protection of the fundamental rights of personal information over the protection of civil rights,such as the compatibility of public and private law and the maximization of protection effectiveness.The second part discusses the right to personal information as a fundamental constitutional right,firstly,by using the technique of constitutional interpretation to derive the right to personal information as an unenumerated fundamental right in three constitutional provisions in China,and then discusses the normative connotation of the right to personal information in three dimensions:value objective,scope of protection,and specific capacity,and analyses the sources of infringement of the right to personal information,in order to later discuss the normative function to develop a dual path to control the sources of infringement.The third part analyses the normative content of the fundamental right to personal information.The third part analyses the normative function of the fundamental right to personal information,which is divided into two dimensions:the subjective defence function and the objective value order function,which correspond to the negative and positive protection obligations of the state public authorities,and are the focus of this article.The subjective defence function is discussed from four perspectives:legality of competence,legality of content,legality of procedure and legal responsibility,through the framework of the analysis of the legality of administrative acts;the objective value order function is discussed from three perspectives:traditional institutional safeguards,organisational and procedural safeguards and the State’s duty to protect.The fourth part deals with the limitations and conflict resolution models of the fundamental rights of personal information.A consideration of limitations and conflict resolution models will enable us to have a more systematic understanding of the protection of personal information.In particular,we analyse the constitutional elements of the restriction of the right to personal information,typologically summarise the fundamental rights conflicts,and further propose a model for the resolution of the fundamental rights conflicts of personal information in three aspects:procedural prevention,substantive weighing,and practical reconciliation.