健康码之法视角分析

On the Legal Perspective of Health Code

新兴数字产物健康码的产生彰显出政府社会管理手段的创新,但健康码在运用过程中因法律属性不明确,存在授权性运用的“监管俘获”风险、功能扩张性运用风险及运用健康码对公民个人权利保护部分脱节产生的算法侵权与信息泄露风险。政府要实现行政管理权与保护公民权利之间的法益平衡,既需要对政府政策性疫情防控举措进行规制,在既定法律规范内合法合理行政;还要充分保障公权力与私权之间的良性互动,避免因突发事件导致政策性措施超越法律规范约束。

Emerging digital product health code shows the innovation of government’s social management means. However, in the process of using health code, there are risks of “regulatory capture” of authorized use,risks of functional expansion, and risks of algorithm infringement and information disclosure caused by the partial disconnection between the use of health code and the protection of citizens’ personal rights due to unclear legal attributes. In order to balance the legal interests between the government’s administrative power and the protection of citizens’ rights, the government needs to regulate the policy-based epidemic prevention and control measures of the government, and conduct legal and reasonable administration within the established legal norms. The government needs to fully ensure the positive interaction between public and private power, and avoid policy measures exceeding legal norms due to emergencies too.