| In the era of big data,the global flow of information has become an indispensable and necessary factor in the global economy.The financial industry is no exception.The financial industry itself is an industry with a high degree of information operation.Large numbers of financial transactions are achieved depending on the full transmission of information.With the gradual open-up of China’s financial industry and economic system,the continuous development of financial cross-border business,and the antimoney laundering and other regulatory work carried out by financial regulators in various countries,financial institutions and financial regulators in various countries have an increasing demand for the cross-border flow of personal financial information.However,there is a conflict between information security and information flow efficiency.In addition,information subjects have interest demands for information rights and property rights etc.The state has the interest demands for national security data sovereignty etc.Financial institutions have interest demands for improving economic effectiveness.Tripartite interests produce inevitable conflicts of interest in the cross-border flow of personal financial information.However,at present,the legal regulation of the cross-border flow of personal financial information is insufficient to respond to the conflicts of interests,and the interests of all parties cannot be fully balanced.The legal regulation of the cross-border flow of personal financial information embodies the conflict and balance between the cross-border flow of personal financial information and the corresponding information security,that is the conflict and balance between the efficiency and security.As the individuals and countries need to protect the security of personal financial information to safeguard personal and property interests as well as national security and financial stability,while financial institutions need the cross-border flow of personal financial information to maximize their business interests.Behind the conflict,there is a contradiction among national interests,personal interests,and commercial interests.In order to find a balance among the conflict of interests,it is necessary to make it clear “the interests that are obviously needed to be given priority to protecting”.From the perspective of extraterritorial practice,the European Union has established the personal information right as a basic human right,formed a high-standard personal information protection system,attached importance to the information security,and reflected EU’s tendency to focus on protecting the personal interests.Through the system of “principle of adequate protection”,“standard contractual clauses” and “binding corporate rules”,strict requirements are put forward for the cross-border flow of personal financial information.The United States attaches importance to promoting the free flow of information.Although the Gram-Leach-Bliley Act(GLB)stipulates the prerequisite for financial institutions to share personal financial information,it does not impose special restrictions on providing the personal financial information abroad.Comparing the domestic with foreign practice,the author believes that,there would be a wide range of beneficiaries from the state preventing and defusing financial risk,creating a good business environment for the financial industry,and protecting the personal financial information.Therefore,the state should formulate rules to protect the rights and interests of individuals in the cross-border flow of personal financial information,and financial institutions should take measures to protect them actively;When the risk to national security is high,the right of individuals to control their own personal financial information should be restricted by the state;At the same time,the principle of proportionality should be followed to restrict the exercise of public power,so that the development of the financial industry will not be too restricted.The path to realize the balance of interests needs to face the conflicts of interests directly and formulate differentiated legal regulation measures according to different situations of cross-border flow of personal information,to make legal regulation flexible and achieve the balance of interests of all parties in different situations.Therefore,this essay is going to make a classified analysis of the cross-border flow of personal financial information.From the perspective of personal financial information classification,the sensitivity of user authentication information,personal account and personal identity information is different.From the perspective of different scenarios of the cross-border flow of personal financial information,there exist different scenarios regarding to the flow of information.For example,the scenarios for the flow of information needed to carry out daily business activities,such as crossborder remittance and payment,cross-border investment,and entrusted processing,and the scenarios for coping with the overseas supervision or judicial behavior.The sensitivity of the personal information and the risk of information security corresponding to the different scenarios are also different,and the information subjects have corresponding different reasonable expectations for cross-border flows.This essay is also going to make a differential analysis on the strength of legal regulation under different circumstances.To sum up,from the perspective of the balance of interests,for the value orientation of the legal regulation of the cross-border flow of personal financial information in China,the national interests should be a priority.In the meantime,personal interests should be protected,and the commerce use should be promoted.The basic position is to promote the cross-border flow of personal financial information on the premise of ensuring information security.Therefore,this paper puts forward some suggestions as follows: firstly,we should formulate different legal regulation measures for different cross-border flow of information scenarios.We should prohibit the crossborder flow of personal financial information at level C3;limitedly restrict the crossborder remittance and payment scenarios,cross-border investment scenarios,in principle prohibit cross-border flow of information under entrusted processing scenarios,and strictly restrict cross-border flow of information under overseas regulatory or judicial scenarios;As for the characteristics of the financial institutions,the financial regulatory departments shall formulate identification rules for CII,incorporating the financial market infrastructure into the CII and excluding the small and medium-sized financial institutions;Secondly,the individual rights and interests in the cross-border flow of personal financial information.The regulation measures should protect the individuals’ rights to know and choose about the cross-border flow of personal financial information,minimize the influence on the personal information rights and interests,and prevent financial institutions from abusing the cross-border flow of personal financial information;Thirdly,we should actively participate in international cooperation on the cross-border flow of personal financial information,actively participate in or formulate bilateral and multilateral agreements and arrangements,and select free trade zones with better conditions to carry out pilot exploration. |
