个人信息民法保护的模式选择_英文_王成.pdf
Social Sciences in China PressSocial Sciences in China, 2021Vol. 42, No. 1, 117-134, http:/dx.doi.org/10.1080/02529203.2021.1895503Selection of a Model for Civil Law Protection of Personal InformationWang ChengSchool of Law, Peking University现代科技带给人们安全和便利的同时，已经成为一种独立于人类的异化力量。现代科技与人类发展之间的关系是个人信息保护问题讨论的宏观背景，中国法律应当积极回应，避免沦为世界范围内的“规则洼地”。中国个人信息保护立法重公法、轻私法，缺乏民事基本法的规则支撑。在法律体系中，民法是保护人之主体地位的重要手段和基础规范，能够为个人信息保护提供体系支持。应当确立信息主体对个人信息的自主控制，补强利益关系中最弱的一方。在个人信息民法保护的模式选择中，间接保护模式和法益保护模式都存在缺陷。权利保护模式更适合中国的立法及司法现实。个人信息权可以嵌入到既有人格权规范体系中，实现法律体系的内在和谐。民法典人格权编应当采取权利保护模式。关键词：个人信息权科技异化保护模式民法典Despite its safety and convenience, modern technology has turned out to be an alienating force independent of humankind. The relationship between modern technology and human development furnishes the macro-background for the discussion of personal information protection issues. Chinese law should respond actively to avoid being reduced to a “morass of rules” in the global context. Chinas legislation on personal information protection emphasizes public law at the expense of private law; it lacks the rule based support of basic civil law. Within the legal system, civil law is an important means and basic norm for protecting the agency of human beings, as it can provide systemic support for the protection of personal information. Formulation of the corresponding legislation should establish the independent control of personal information by the subject of the information, and should reinforce the position of the weaker side in the interest relationship. With regard to selecting of a model of civil law protection of personal information, the models of indirect protection and legal interest protection both have flaws; the rights protection model is better suited to Chinas legislative and judicial realities. The right to personal information can be embedded in the existing normative system of personality rights to ensure the internal compatibility of the legal system. The rights protection model should be adopted in the personality right section of the Civil Code.118Social Sciences in ChinaKeywords: right to personal information, alienating force of science and technology, protection model, Civil CodeTechnology has brought mankind great convenience. However, the relationship between man and technology resembles the process of the alienation of labor discussed by Marx, i.e., man creates a power alien to him through the use of his own intelligence. “The alienation of the worker in his product means not only that his labor becomes an object, an external existence, but that it exists outside him, independently, as something alien to him, and that it becomes a power on its own confronting him. It means that the life which he has conferred on the object confronts him as something hostile and alien.”1 The more man expends his resources, “the more powerful becomes the alien world of objects which he creates over and against himself,”2 and the greater the degree of alienation. Historically, nuclear weapons, biotechnology, aviation and cyber technologies have all become forces capable of destroying mankind.3 The greater the danger of technologys escaping from human domination, the more pressing is mans desire to control it.4 As the latest developments in modern technology, do big data and artificial intelligence mean that the quantitative accumulation of the alienated relationship of man and technology will approach the critical point of qualitative change, that is, the “singularity” will soon arrive?5As the raw material for big data and artificial intelligence, personal information is worth its weight in gold.6 The development of personal information technology and personal information business is closely related to mans survival and development and has an extensive and far-reaching impact on human society. Issues relating to personal information need to be discussed in the context of the relationship between man and technology. The protection of personal information is, in the final analysis, a response to the challenges brought by the latest technological developments, such as big data and artificial intelligence, in order to domesticate the alienating power of technology, protect mans freedom, dignity, security, property, and agency, and protect the social order and national security. This article attempts to explore possible ways of protecting human agency by examining the nature of mans relationship with technology. The main issues to be discussed here are: what is the relationship between the information subject and the subjects personal information? How is this relationship described and regulated in the discourse system of civil law? And how and to what extent do the description and regulation affect the development of technology and commerce and the exercise of public power? 1Karl Marx, Economic and Philosophical Manuscripts of 1844, p. 48.2Ibid.3Gregory C. Allen and Taniel Chan, Artificial Intelligence and National Security, pp. 12-41.4Martin Heidegger, Vortrage and Aufsatze, p. 5.5Ray Kurzweil, The Singularity Is Near: When Humans Transcend Biology, p. 10.6See Lin Meijun, “The Consent of a Data Subject in the Personal Data Protection Act.”Wang Cheng119I. The Status and Role of Civil Law in the Protection of Personal Information 1. The basic position of civil law in the protection of personal informationAt present, specific rules on personal information protection in China are scattered across the laws and regulations formulated by departments at different levels and covering fields such as telecommunications, the Internet, tourism, postal service, delivery services, e-commerce, credit checks, finance and consumer protection. Most of these rules exist in the field of public law,7 and are of significance in safeguarding cyber security, combating crime and safeguarding social and public interests. However, the current legislation on personal information protection emphasizes “criminal procedure first, civil procedure second.” This has prevented a clear definition of the connotations and legal nature of “citizens personal information” and adversely affects the application of the crime of infringing on citizens personal information.8 The threshold for personal information protection in criminal law is relatively high, and the act of infringing on personal information constitutes a crime only when it conforms to the limited statutory modes of conduct and the relatively high standards for penalties.9 In terms of administrative law, personal information disputes tend to fall into the scope of disclosure of government information; personal information and privacy are not clearly defined, and the review rate of personal information administrative litigation is high, which makes it difficult to achieve the substantive resolution of disputes.10Generally speaking, the existing public laws protecting personal information have the following limitations. First, the quality of norms needs to be improved. Their content is scattered and repetitious, being confined to the responsibilities of the department that drew them up, and their constructive conditions or legal effect is incomplete. Second, there is a lack of systemic norms. The norm-formulating body and the field being regulated are characterized by diversity 7For example, in 2012, the Standing Committee of the National Peoples Congress adopted the Decision on Strengthening Information Protection on Networks. In the field of administrative law, Provisions on Protecting the Personal Information of Telecommunications and Internet Users; Information Security Technology: Guidelines for Personal Information Protection within Information System for Public and Commercial Services; Information Security Technology: Personal Information Security Specification; and other norms at different levels constitute the primary framework of protection of personal information in administrative law. In the field of criminal law, Article 253 of the Criminal Law provides for the “crime of infringing on citizens personal information,” which is further detailed in the Interpretation of the Supreme Peoples Court and the Supreme Peoples Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Infringing on Citizens Personal Information (SPC Interpretation No. 10 of 2017).8See Yu Chong, “The Nature of the Legal Interest in Citizens Personal Information and the Borderline for Criminalization in the Crime of Infringing on Citizens Personal Information.”9See Shi Juhang, “Jurisprudential Restatement of the Circumstances Are Serious in the Crime of Infringing on Citizens Personal Information.”10See Li Shuai, “Existing Problems and Measures for Improvement in Public Law Protection Mechanisms for Personal Information: Based on Quantitative Analysis of 295 Administrative Judgments.”120Social Sciences in Chinaand randomness; there is a lack of basic norms with universal effect. No norm controls any other, and the definition and enumeration of personal information cannot be unified. Third, the effect of supervision is limited. Although the supervision and punishment mechanisms of public law have the advantage of efficiency, it is hard to mobilize the subject of the information to participate, and a good supervisory result cannot be guaranteed. Fourth, the requirements for judicial adjudication rules cannot be met. Existing personal information disputes are mainly civil cases.11 Public law norms alone cannot satisfy the need for judicial rules. Some people hold the view that personal information should be treated as a public good rather than a private right, and thus should be governed by public law in the same way as risk regulation, etc.12 This view, in essence, aims to ensure an absolute free flow of information at the expense of the rights of the information subject. Risk regulation, which focuses on ensuring the security of personal information without regard to its significance for the subject of that information, cannot in itself provide the most important legal basis for the processing of personal information. More importantly, this view ignores the basic role of private law in the legal systems handling of personal information protection, i.e., the need to define the legal attributes of personal information in basic civil law. Under Article 8 of the Legislation Law of the PRC, matters concerning the basic civil system are governed by laws enacted by the National Peoples Congress. It is necessary to define the right to personal information, which is now at the stage of generating civil rights, within the framework of the basic civil law. If the basic civil law fails to define the right to personal information, the legal basis for its rules will be unsound whether they fall under criminal law or administrative law. First, should the positioning of personal information be ambiguous under civil law, the protection of personal information under the norms of criminal law, administrative law and other public law will necessarily become a stream without a source or a tree without roots.13 Second, the basic legal relationships that take shape around personal information are mainly relationships between equal subjects, i.e., the relationships of civil rights and obligations arising from personal information that involve the subject of the information and information processors. Though personal information processors include public authorities, the latter should apply the same rules as those applied to civil subjects. Third, remedies for personal information should mainly rely on civil arrangements. Once personal information is infringed, the top priority is to enable the victim to obtain remedy through such private law mechanisms as tortious 11In 2017, a total of 8,928 written judgments containing the words “personal information” (个人信息) were issued by Peoples Courts at all levels nationwide, including 5,366 written civil judgments, 2,818 written criminal judgments and 579 written administrative judgments. See Li, Shuai. “Existing Problems and Measures for Improvement in Public Law Protection Mechanisms for Personal Information: Based on Quantitative Analysis of 295 Administrative Judgments.”12See Ding Xiaodong, “The Dilemma and Way Out of Private Law Protection of Personal Information.”13See Yu Zhigang, “The Rights Attribute of Citizens Personal Information and the Thought of the Criminal Law Protection.”Wang Cheng121liability, with administrative means and criminal punishment acting only as supplements.142. The significance of civil law protection of personal information Relying solely on top-down management orders and prohibitions will inevitably lead to the neglect of the legitimate rights and interests of the subject of information, excluding as it does the participation of private right actors in the governance of the information society and reducing the “rights law” on personal information protection to a “management law” with strong administrative features, thus failing to fundamentally protect peoples legitimate rights. Therefore, we should attach equal importance to “management law” and “rights law,” acknowledging the private law nature of personal information and endowing natural persons with rights to their own personal information premised on defining their civil rights and interests. Only in this way can the subject of information fully participate in the governance of the information society, increase the certainty of rules governing the development of technological and business entities, form institutional incentives for personal information protection and utilization, and realize a new pattern of multi-party cooperative governance.15At present, cross-border flows of information have become the norm, and laws for the protection of personal information generally have an extraterritorial effect. On a global scale, the major countries and regions have enacted civil laws specifically designed to protect personal information.16 Compared with huge scale of its personal information and its advanced technology and highly developed business activities in this area, Chinas civil law protection of personal information is too weak. Without civil legislation on personal information, China will fall behind in this field. Across the world, the countrys low level of protection will be seen as a “morass of rules”; and its lack of systemic norms as a “desert of rules,” which will prevent the country from conducting a rule-based dialogue on equal terms with the EU, the US, Japan and other bodies. Further, the lack of basic civil law protection for personal information will lead to a double standard for protection of personal information at home and abroad, making it difficult for Chinas information enterprises to enter world markets. Foreign information processors, on the other hand, have easy access to our citizens personal information, posing a serious threat to Chinas national security and its economic and social d
