| As mankind enters the digital age represented by high-tech technologies such as big data analysis,cloud computing,artificial intelligence,and the universal application of the Internet,the existing production and living ecosystems of mankind are constantly being reshaped,and new economic growth and society are born.The management model,and the innovative application of data information has activated the social public value and commercial economic value contained in personal information,and the comprehensive value of personal information has been continuously demonstrated.If so,it is normal for different entities to collect personal information on a large scale by means of automated data processing and further process it to dig deep into its intrinsic value to meet their different needs.In this scenario,the security of personal information is under threat and causes endless social problems.Regardless of legislation or academia,strengthening personal information protection and reasonable regulation of personal information processing has been universally recognized at home and abroad(regions).The problem of personal information protection only occurs in the personal information processing stage.If personal information is not processed,it cannot enter the circulation field,let alone the legal protection of personal information.If so,the processing of personal information is the logical prerequisite for the legal protection of personal information.The rights and interests of personal information in civil law should be in addition to intellectual property rights,which are very different from the rights of property and personal rights in traditional civil law.Its special form of rights in civil law is the foundation of the government’s regulation of personal information and the criminal justice department’s criminal regulation.,Is the foundation of the rule of law in the society under the background of digital technology,and it should be the starting point of the structure of the national rule of law system.This article explains the balance between the protection of personal information rights and the use of personal information from the perspective of personal information processing.Regarding the processing of personal information,Article 1035,paragraph 2 of my country’s Civil Code stipulates: "The processing of personal information includes the collection,storage,use,processing,transmission,provision,and disclosure of personal information." In comparative law,The same applies to personal information handling regulations.It can be seen that discussing the legal system of personal information processing is an important issue in the protection of personal information.In the context of the digital age,personal information processors rely on the above-mentioned high-tech technologies to achieve large-scale and frequent processing of personal information.The focus is on,so this article mainly combines the analysis of automated data processing methods.In general,based on the current social background of the level of technological development,starting from the protection of the legal rights and interests of personal information subjects,taking into account the use of personal information,and the use of personal information is reflected in the processing of personal information.This article focuses on the legal system for the handling of personal information.Although it is more direct and effective to adjust from the criminal law,administrative law and other public law fields,it is more practical and effective to protect the civil rights and interests from the perspective of personal information from the perspective of private law.There is a harmonious relationship between the protection of personal information and the use of personal information,and the processing of personal information is the bridge between the use and protection.In addition to the introduction and conclusion,this article is divided into five chapters.The first chapter is the expression of the basic issues of personal information processing in the digital age..This chapter is divided into three sections.First,analyze the personal information that is the object of personal information processing.In comparative law,the European Union and many countries(regions)have different names for this,such as "personal data","personal information","personal information",etc.,while the mainland of China stipulates that it is personal information.This is an in-depth analysis of the content of personal information.The above definition,this article agrees with the statement that "information is the content of data,and data is the form of information".There are two ways to define the concept of personal information: "abstract generalization" and "abstract generalization +incomplete enumeration".Based on the connotation of personal information,this article believes that my country’s use of "abstract summary + incomplete enumeration" is in line with the current digital technology development scenarios.Combining the connotation of personal information,it mainly reflects the identification,but its relevance characteristics should be paid enough attention,and the identification and relevance should be combined to determine whether it is personal information.This is also the focus of personal information processors in the use of personal information.problem.In addition,the most important thing about personal information is its private characteristics,which is also the natural relationship between personal information and its subject,and it is an important support for its personality attributes.Combining with our country’s method of defining personal information,starting from reality,the use of "incomplete enumeration" may cause difficulties in judicial application.This article proposes to categorize it and classify it from the subject of personal information and the sensitivity of personal information in order to be effective.Solve the application problem in judicial practice.Regarding the nature of personal information,academic circles have different views such as "the nature of general personality rights," "the nature of property rights," "the nature of privacy rights," and "framework rights." This article combines my country’s "Cyber Security Law","Civil Code" and other regulations on personal information.Although the nature of personal information is not clear,the "road map" of the nature of personal information right can be seen from the location of the "Civil Code".It should be a special type of civil rights independent of property rights,creditor’s rights,and intellectual property rights,but the specific types of civil rights should be determined in conjunction with the relevant judicial interpretations and specific applications of the Civil Code.In the connotation of personal information processing,the concept of personal information processing is first defined based on the social background of the development of digital technology,and the characteristics of personal information processing are analyzed.There are huge quantification of processing capabilities,intelligent processing behaviors,diversified processing scenarios,and processing.Features such as low cost.Finally,based on the extensive characteristics of personal information processors in the digital age,they are divided into state agencies and non-state agencies from a typified perspective,and discussed on this basis.The second chapter is the legal basis of personal information processing in the digital age.This chapter is divided into four sections,and the structure is discussed in the form of "total score".First,it introduces the legitimacy of personal information processing in general.It mainly includes the theory,practical basis and legislative embodiment of the legitimacy of personal information processing.On the basis of the legitimacy of personal information processing,starting from the fact that technological development should adhere to the principle of "people-oriented",combine the diversified value of personal information with the diversified needs of society to explain the relationship between the two,and reveal the personal information subject’s role in the reasonable processing of personal information.The issue of information self-determination.Then,based on my country’s national conditions,this article refers to relevant extraterritorial legislation,based on Articles 1035 and 1036 of the Civil Code and Article 13 of the Personal Information Protection Law(Draft),to analyze the legal basis of personal information processing in the context of the digital age.problem.Combined with the current level of digital technology development,although personal information processing has a legal basis for legality,it is combined with my country’s "Network Security Law","Children’s Personal Information Network Protection Regulations," "Civil Code",and "Personal Information Protection Law(Draft)".There is legislation that only stipulates the legality of the legitimacy of personal information processing without integrating the ethical and moral factors of human society.This is not only different from the internationally accepted personal information processing should be "legal + ethical and ethical",but also in society In practice,the processing of personal information is legal but violates the ethics and morality of human society,is not conducive to protecting the legal rights and interests of personal information subjects,and hinders the normal operation of personal information processing.The third chapter is about the rights and obligations of personal information processing in the digital age.This chapter is divided into four sections.The system explains the rights and obligations involved in personal information processing,including the rights and obligations of personal information subjects and personal information processors.Through the comparison of extraterritorial legislation and combining with the existing relevant legislation in our country,this article classifies the rights of personal information subjects into proactive rights and passive defensive rights enjoyed by personal information subjects.The former aims to encourage personal information subjects to perform proactively.Type rights,which strangle the possible infringements of personal information in the process of processing in the bud,and the latter focuses on a remedial measure after the damage occurs in the processing of personal information or may infringe the legal rights and interests of the personal information subject.The exercise of the private rights of personal information subjects minimizes the infringement.The law confers rights on the subject of personal information for the purpose of protecting the personal dignity and freedom of personality and other personal interests carried by the personal information.By fulfilling the obligations stipulated by the law or the agreed obligations,it is to effectively ensure that the personal information processors use their personal information properly and make The important support for its intrinsic value to be embodied is also the original intention of personal information processors in the current social background of digital technology development to process personal information.For example,state agencies process personal information to achieve "digital government" and other service-oriented government construction,and commercial organizations are reasonable.Handling of personal information to achieve market competition needs,etc.In terms of the rights of personal information processors,it mainly analyzes their rights to the original data of personal information and their rights to the derived data of personal information.The former focuses on protection and the latter focuses on utilization.In terms of the personal information processor’s obligations,through analysis of relevant domestic and foreign(regional)regulations,combined with my country’s Civil Code and the “Personal Information Protection Law(Draft)”,it is concluded that from the perspective of personal information processors,the protection of personal information and Under the premise of proper processing of personal information,it not only protects the legitimate rights and interests of the personal information processor,but also avoids the recklessness of the personal information subject in exercising the right of revocation.In the processing of personal information,there will inevitably be conflicts of rights.Based on personal information processing practices and relevant legislative provisions,this article divides the possible conflicts of rights in the processing of personal information into the stage of personal information collection,personal information being further processed,and personal information being processed.The conflict of rights in the three stages after processing is completed.The academic community paid more attention to the conflict of rights that occurred in the first two stages,and ignored the conflict of rights after the completion of personal information processing.If the conflict of rights after the completion of personal information processing is not resolved,the issue of personal information protection cannot be solved.Effectively resolved,the legal and social effects of the use of personal information are difficult to demonstrate.To resolve the conflict of rights in the handling of personal information,the rights of personal information subjects can be analyzed from the theory of restriction,and the principles of purpose,proportionality,and interest evaluation can be combined to analyze personal information.The processor should uphold the concept of personal information processing,by strengthening the personal information processor’s obligations,in order to achieve the coordination of the rights and obligations of the personal information processor and the personal information subject.Chapter 4,tort liability for improper handling of personal information in the digital age.This chapter is divided into four sections.First of all,this article is based on reality,combined with existing legislation,mainly from the perspectives of personal information leakage,illegal use,and illegal provision of personal information across borders.It is true that the types of infringements of personal information processing are not limited to those mentioned above.There are also infringements such as third parties stealing personal information,illegally collecting personal information,illegally buying and selling personal information,illegally tampering with personal information,illegally destroying personal information,and illegally sending personal information.In the specific infringement of personal information subjects by personal information processors,the specific infringement situations under two different types of state agencies and non-state agencies are analyzed.From the perspective of categorization,the different infringements caused by personal information processing are systematically analyzed.Different personal information subject types and personal information sensitivity are different at different times,and in the consequences of personal information subject’s infringement,it is mainly from three perspectives of personal information subject’s personality interests,personal information subject’s family,and the society and country where the personal information subject is located.analysis.In order to balance the relationship between the protection and use of personal information,and to satisfy the smooth progress of personal information processing by personal information processors based on the protection of personal information,the types of defenses for infringement liability for improper processing of personal information are analyzed,including non-violation due to legitimate reasons Defenses of liability for sexual infringements and defenses for liability for infringements that are not liable due to external reasons.In terms of the constitutive elements of the tort,the former is indeed a tort and should bear the corresponding tort liability.However,due to the legal reasons stipulated by the law,the infringer’s tort liability is reduced or exempted.It is also called "infringement illegality" in academic circles.Reasons for blocking” include three different types: legitimate defense,emergency avoidance,and self-help behavior.For the latter,the idea of ??external causes is from the perspective of causality.Specifically,it refers to the fact that the perpetrator did not commit the infringement,which is the basic premise.The eventual damage consequences are wholly or partly attributable to some external event or the behavior of others,combined with the basic premise of not committing the infringement,thereby claiming his behavior Does not constitute or alone constitutes the cause of legal tort liability,that is,the damage suffered by the victim is caused by events other than the perpetrator or other reasons.Such external causes have the effect of exempting the liability in whole or in part,mainly including Force majeure,the fault of the victim,and the fault of the third party.Combine the field of personal information protection and analyze the above-mentioned specific situations.In terms of tort liability,the discussion is mainly from the identification and bearing methods of tort liability.Chapter 5,my country’s legal system for personal information processing in the digital age is perfect.This chapter is divided into four sections.Mainly improve my country’s personal information processing system from the perspective of concepts and specific systems.Combining the "lawful,justifiable,and necessary" principle of personal information processing in the Civil Code,and using this as a basis to analyze why this principle is the basic principle of personal information processing,taking the "legitimate,legitimate,and necessary" principle as the analysis object,Combining Article 7 of the "Personal Information Protection Law(Draft)" and analyzing the principles of personal information processing with reference to extraterritorial legislation,it is further believed that the "Personal Information Protection Law(Draft)" Article 7 of the personal information processing is open and transparent This is a principle that should be followed in the processing of personal information.However,combined with the overall specifications of the Personal Information Protection Law(Draft),it can be seen that this principle has not been fully embodied,and there is also a lack of effective deterministic guidance.The principle of "lawfulness,justification and necessity" is more pertinent and effective in terms of legal hierarchy and interpretation and application.Therefore,this article believes that the above principles should be the basic or primary principles of personal information processing.In the game for the protection of personal information and the use of personal information,we should highlight the concept of "personal belief" in the "technical beliefs and personal beliefs".The processing of anonymized information should be based on the premise of protecting the personal information of natural persons,of which the key is particularly important.Yes,it is necessary to ensure the legality of the collected personal information from the source,the "deanonymization" of anonymized information should be prohibited during processing,and the application of the principle of purpose restriction in the entire anonymized personal information processing to achieve personal information The balance between protection and use of personal information.Regarding the legitimacy basis of personal information processing,my country mainly interprets it from the perspective of legality.Combined with the processing activities of personal information processors stipulated in the "Personal Information Protection Law(Draft)",not only legal and other institutional factors should be considered.The important thing is to review the personal information processing code of conduct based on the social ethics that human society should follow,and uphold the development concept of "people-oriented".In combination with personal information infringements in the context of a digital society,the infringing subjects and responsible subjects are diversified as the network information society advances.Specifically,from the perspective of personal information processors,the infringing subjects mainly include state agencies and non-state agencies,Such subjects may have infringements such as leakage and illegal use in the processing of personal information collection,storage,and utilization.According to the traditional view of tort law,the application of the principle of liability for tort should be combined with the occurrence of damage facts,and for the occurrence of a kind of damage fact,the principle of liability for fault is generally applied to the infringement subject,but there may also be different tort The subject’s different ways of infringement apply different imputation principles or a combination of multiple imputation principles.Combining different types of infringing subjects,different types of personal information subjects,and personal information with different sensitivities,after the infringement has occurred,and causing the consequences of infringement damage,combined with the above-mentioned different peculiarities,the principle of infringement liability is further refined in order to protect individuals On the basis of information,standardize personal information processing behavior and promote the realization of the comprehensive value of personal information. |
PDF Full Text Request