Research On Judicial Presumption Of Data Rights

The Chinese government is vigorously fostering data element markets to promote the development of the digital economy.Data trading is a key part of the digital market,which is premised on the determination of data rights.However,at the present stage,the legislation of data rights has encountered difficulties,and the theory of data rights needs to be tested.It is necessary to break through the theoretical path dependence of data rights research and study the judicial presumption of data rights from the actual level of data disputes.We define the concept of judicial presumption of data rights along the line of "data-data rights-judicial presumption",clarify the difference between data,information and privacy,and clarify In addition,we will clarify the relationship between "data rights" and "data rights" and "data sovereignty",and understand the judicial presumption from three dimensions: presumption of rights,inference of rights,and evidence of rights.In the practice of judicial presumption,data rights are presumed to have the attributes of personality rights and property rights.The objects of rights presumed by the judiciary can be classified as raw data and derived data based on whether the data are processed,and personal data and non-personal data based on whether they can be associated with a specific individual.Among the judicial presumptions on the content of rights,those that are denied are data ownership,the right to be forgotten,and the right to portability of personal data,and those that are affirmed include the right to limited use of data,competing interests in data,and property right and interests in data.The presumed data rights subjects are network users,data collectors,data controllers,and data processors,but the presumption of rights attribution does not allocate any data rights to network users,but rather attributes limited data use rights to data collectors,competing data rights to data controllers or data collectors,and data property right and interests to data processors.Judicial authorities presume data rights based on legal norms,labor elements,incentive theory and platform agreements,among which legal norms presume data rights attributes and contents,while labor elements and incentive theory mainly serve as the basis for presuming the attribution of rights.The dilemma faced by judicial presumption of data rights is reflected in three aspects: first,because data rights are not legal rights,and judicial practice identifies the subject matter of litigation based on substantive law claims,so the litigation relief of data rights is limited by the old doctrine of the subject matter of litigation;second,the judiciary is generally conservative,which is mainly manifested by the courts’ "denial of the claimed Third,due to the lack of national legislation on data rights and conservative local legislation,the legal supply of judicial presumption of data rights is insufficient.In view of this,the judicial presumption of data rights is optimized in two ways: on the one hand,in the absence of statutory data rights,the new theory of litigation subject matter should be considered as the theoretical support for the identification of litigation subject matter,so as to open the door to litigation remedies for data rights,and at the same time,the dynamic position under judicial restraint should be adhered to,and the legal framework should be used as the boundary of the presumption of rights,so as to prevent the abuse of discretion in the presumption of data rights;on the other hand,the national legislation on data rights should be promoted.On the other hand,the national data rights legislation should be promoted to provide a basis for local data rights legislation,and the local level should actively explore the pluralistic mode of data rights local legislation with the basis of the higher law,improve the legislative supply of judicial presumption of data rights,and fundamentally solve the problem of data rights litigation remedy.