Identification Of Personal Information Infringement From The Perspective Of Flexible System

The innovative introduction of personality right in the flexible system makes the legal theory appear in the code for the first time and has special significance as a law methodology.As a legal methodology in the field of private law,flexible system reduces tort damage to several elements with different intensities and different ranks,and evaluates each element according to its strength and weakness relationship.For the new torts in the field of contemporary personal information,the flexible system does not provide clear criteria for the judgment of elements,but provides frame guidance,which subtly avoids the rigid evaluation of constitutive elements,so that the stable law can keep up with the complicated changes in social life.At present,in our judicial practice,the way of judges’ determination of rights and interests infringing personal information is mainly still in the mode of fixed constitutive requirements.However,after the promulgation of Civil Code and Protection Law,there have been courts in the adjudication of personal information infringement cases,using the innovative flexible system in the Civil Code to determine the tort liability.When dealing with new infringement problem,Make comprehensive judgments to better realize fairness and justice.The flexible system has mature application practice abroad,which should also be used for reference.After comparing the legislation mode of personal information protection of European Union,America and Japan,Japan and our country are close to the geosystem,cultural habits are similar,because of late legislation,and the characteristics of legal protection and industry self-discipline.Therefore,the Japanese mode of personal information protection is helpful for our country to improve the identification and protection mechanism of the field of personal information infringement.Based on the actual situation in our country,when determining the infringement of personal information,dual evaluation mode can be used,that is,the substantive principles are measured first,and then the evaluation results are compared with the traditional evaluation results.If the result is not fair with the fixed constitutive elements,then we can use the flexible system evaluation framework to argue.If there is no difference between the two results,we can continue to apply the fixed component model for evaluation.In order to show the evaluation framework of flexible system more vividly and provide frame guidance for judges to evaluate their values,"fairness","freedom" and "public order and good customs" can also be used as principle guidance to construct a " flexible system model".