Between Protection And Circulation: Reflections On Construction Path Of China’s Data Rights Legal System

With the development of Big Data Technology and digital economy,data has become the core factors of production in economic construction.At present,China has built up the basic framework of the legal system of data rights,the legal protection system of data rights has been gradually improved,and data circulation has gradually developed into the core category of the rule of law of data in China.However,due to the influence of the logic of private rights and the extraterritorial legislation of data protection,the system of data rights protection in China still adopts the individual rights-based empowerment method,which takes the individual control theory as the core.The logic path of private right,which is based on the theory of personal control,is contrary to the special property of data,which leads to many contradictions in the related theories and leads to the logic confusion and fragmentation in the system.At the same time,the conflict between the protection of personal privacy and the sustainable development of the digital economy has been aggravated by neglecting the interests of users and the public in data rights,the failure of the principle of informed consent,which is an important mechanism,also proves that the right of data self-control can not be realized effectively in the complex and changeable society.Therefore,it is necessary to reflect on the choice of the construction path of the current legal system of data rights,and combine the economic characteristics and legal attributes of data rights to explore the theoretical path for the balanced development of data protection and data circulation.Since data can be reused many times,and relevance,sharing and openness are the fundamental sources of data value,data can be defined as a quasi-public good in the concept of economics,with non-exclusivity and a certain degree of competition.In order to prevent the risks of "tragedy of the commons" and "anti-commons tragedy" in data security governance,that is,to prevent the misuse of data resulting in the loss of individuals’ legitimate rights and interests due to the unclear definition of data property rights,or when the excessive division of data property rights results in the data resources not being fully and reasonably utilized,the construction of the legal system of data rights should take full account of the unique attributes of data,and introduce the theory of social control of data rights,in combination with the theory of individual control,this paper measures the multiple values in data rights,and each subject transfers its own non-core interests in the process of data transfer,to realize the paradigm shift of multi-rights standard in the construction of legal system of data rights.First of all,in terms of the refinement of the current legal protection system for data rights,the realization mechanism of the theory of personal control over data rights should be optimized.The principle of informed consent is a concentrated expression of the theory of personal control,thus is should be maintained.The subject of data rights should be given more reasonable consideration,and the Reverse onus rules should be refined,enhance the effectiveness of the principle of informed consent in the process of judicial judgment,and break the plight of the principle of informed consent being ignored and weakened.Secondly,regarding the improvement of the legal system of data rights,a supporting legal system that takes into account data security and development should be established based on a risk approach.From the point of view of risk prevention,a legal system for data circulation should be constructed from the perspective of social control theory,taking into account the risk of personal information data leakage and the risk of overall data security development,so as to achieve the purpose of data security development.As far as the risk bearing is concerned,we can guide the data processor to fulfill the obligation of data security by constructing the "gatekeeper" system of the super-large Internet platform,the establishment of industry self-discipline,government-led,public participation in a multi-governance mechanism.At last,the relationship between data protection and data circulation should be clarified.Data protection is the foundation of data circulation,and data circulation is the expansion and sublimation of data protection value.Regarding the system of informed consent and the system of gatekeeper as the basic system of the legal system of data rights,and combining the security risk analysis of the data life cycle,perfecting the judicial dispute settlement system of data rights,balanced the development of data protection and data circulation.