Research On The Determination Of Infringement Of Commercial Data Rights And Interests

Data contains huge economic value,the current discussion on the legal nature,rights and interests owner,protection path is endless,the country is more required to establish a data industry,the rapid development of economic life has urged a large number of data protection needs,but the time for special legislation is far from coming.The understanding and protection of commercial data requires the understanding of data,which is currently recognized as a record of information,and only data with high value that has large substantial investment is worth protecting.Commercial data has the characteristics of big data,large scale,high speed,diversity and value,and has substantial investment,which is a collection of data worthy of protection,and finding its protection methods within the existing legal framework can better meet the urgent protection needs.Protecting the rights and interests of commercial data is the key of protecting commercial data,and the ways to protect commercial data have always been diverse,including rights protection methods and interests protection methods.The right protection method advocates that commercial data should be identified as the object of property rights,intellectual property rights,and new types of data rights,and use corresponding rules or create a new set of rules for protecting.The way to protect rights and interests is to evaluate commercial data as a carrier of protected property interests in accordance with existing laws,and use the behavior regulation model to protect it.The current protection methods include contract protection,tort law protection,and anti-unfair competition law protection,and for the three protection methods,the contract method is not so much a protection method as a way of using commercial data,and the scope of protection is limited.The Anti-Unfair Competition Law is currently the main way to protect the rights and interests of commercial data,and it is unreasonable to apply general provisions to protect commercial data,while general clauses should not be used firstly,but in practice they improperly expand the scope of competitive relationships,and treat all parties in profit-making situations as having competitive relationships.Tort law is a more ideal way of protection,regardless of whether the commercial data is the object of rights or interests,it can serve protection within the scope of tort law,there is no restriction on the identity and relationship between the parties of the infringement legal relationship,and it can avoid the infringement of the right from uncertain persons.Instead of discussing the top-level design with greater theoretical significance than practical significance,it is better to pay attention to the practical protection methods under the framework of the cur rent law,and solve specific problems such as the determination of the fault of infringing commercial data rights and interests,the judgment of harmful acts and the determination of losses within the framework of the tort law,so as to provide the most effective protection for commercial data rights holders.Moreover,the protection of commercial data by tort law can clarify the boundaries of commercial data rights and interests again and again in practice,accumulate valuable legislative experience,and be more conducive to promoting the formation of commercial data rights.Therefore,starting from the existing legal provisions and judgment results,this paper clarifies the legal nature of commercial data,discusses the specific protection methods of commercial data from the field of tort law,and the key to applying tort law to protect lies in the determination of infringement of commercial data rights and interests.The so-called infringement determination includes the determination of the act of infringement and the determination of the composition of tort liability,and the determination of the liability subject and the holder of rights and interests.The first part is about the connotation of commercial data rights and interests and the current status of their infringement law protection,drawing the conclusion that commercial data rights and interests have the characteristics of unclear boundaries and are property rights and interests protected by tort law,introducing the main contents of the protection of commercial data in accordance with the Anti-Unfair Competition Law,and the tort law can make up for the shortcomings of the Anti-Unfair Competition Law.The second part introduces the main issues in the field of tort law,including the choice of infringement determination mode,comparing the violation of protective norms with the four-element recognition model,and then raising the issues of whether negligence in the four-element model can be determined as tort liability element,unclear criteria for judging harmful acts,and uncertain scope of compensation.The third part is the subject and subjective aspects of tort liability.In the legal relationship of infringement,the responsible subject is the general subject;The subject of the claim for infringement liability is the subject of commercial data rights and interests,and the theoretical basis for determining the subject of commercial data rights and interests includes Locke labor theory,etc.,and the subject of rights and interests is the producer and who has invested labor in the process of generating commercial data The subjective fault that should be responsible for the damage is mainly intentional,and the tort liability for negligence should be limited to the situation of gross negligence and professional conduct.The fourth part is the objective aspect of tort liability.Section 1 is the j udgment of harmful conduct,by distinguishing the types of acts that damage the interests of its holders in the anti-unfair competition law,and summarizing that the criteria for judging harmful acts of tort liability are whether the perpetrator destroys the protection measures taken by interests holders on data.Section 2 discusses the harmful consequences of infringement of commercial data rights,which is the loss of property interests.In the situation of commercial data rights and interests are damaged,giving compensation of damages are the main way to bear liability,and the determination of damages cannot be separated from the scope of compensation damages,and comparing the three compensation standards for market price,profit return,and punitive damages are discussed,it is more reasonable to apply the profit return standard,and this standard should be adopted to determine the scope of compensation for the perpetrator.Section 3 is the causal relationship between the harmful act and the consequences of the damage,and the causal relationship includes the factual causal relationship and the legal causal relationship,but if the legal causal relationship is difficult to distinguish,the application of the rules of evidence and the compensation clause can also solve the problem.Through the discussion of the above content,it is hoped that can help holders of commercial rights and interests be protected well and get remedies by the Tort Liability Law.