行政领域与刑事领域间的个人数据流通——兼论德国基本权利理论的实际运用

The Exchange of Personal Data Between Criminal and Administrative Domains --An Analysis on the Practical Application of German Theory on Fundamental Rights

兼顾公共利益与公民基本权利是我国规制跨领域信息交流时的目标,然而在这两种互相冲突的取向中找到平衡并不容易。面对同样的难题,德国的立法者、司法者与学者把目光投向了宪法领域,在基本权利理论的帮助下条分缕析利益格局、确定冲突利益间均衡所在,于此基础上构建、完善自己的数据使用规则体系,规范个人数据在不同领域间的流通。比起德国的具体制度安排,其背后的思维工具更值得我国借鉴,若边用以解决本国问题边对之进行打磨,或能尽早找到适合自己的理论与实践道路。

Taking both the public interest and fundamental fights of individuals into account has been an aim of the Chinese legislation and governance on inter-field information exchange. However, it is not easy to find the balance between the two orientations in confliction. Facing the same dilemma, the German legislature, judiciary and scholars have turned their eyes to the constitutional field, attempting to analyze the patterns of interest and verify the balance between conflicting interests under the help of theories on fundamental fights,with which a norm system on exchange of personal data among different fields was established and refined. In compare with the specific institutional arrangements of Germany, the analytical instrumentality behind serves as a more valuable reference for China. If it could be used to solve Chinese issues accompanying further polish, we may be able to find our own suitable theories and path for practice at an earlier stage.