The advent of the big data era has presented unprecedented challenges to remedies for personal information infringement in areas such as damage assessment,proof of causation,determination of illegality,fault assessmen...The advent of the big data era has presented unprecedented challenges to remedies for personal information infringement in areas such as damage assessment,proof of causation,determination of illegality,fault assessment,and liability.Traditional tort law is unable to provide a robust response for these challenges,which severely hinders human rights protection in the digital society.The dynamic system theory represents a third path between fixed constitutive elements and general clauses.It both overcomes the rigidity of the“allor-nothing”legal effect evaluation mechanism of the“element-effect”model and avoids the uncertainty of the general clause model.It can effectively enhance the flexibility of the legal system in responding to social changes.In light of this,it is necessary to construct a dynamic foundational evaluation framework for personal information infringement under the guidance of the dynamic system theory.By relying on the dynamic interplay effect of various foundational evaluation elements,this framework can achieve a flexible evaluation of the constitutive elements of liability and the legal effects of liability for personal information infringement.Through this approach,the crisis of personal information infringement in the era of big data can be mitigated,and the realization of personal information rights as digital human rights can be promoted.展开更多
Protecting personal credit information through constitutional rights is not only essemtial for individuals to defend against infringements on their personal credit information rights and interests by public power in t...Protecting personal credit information through constitutional rights is not only essemtial for individuals to defend against infringements on their personal credit information rights and interests by public power in the social credit system,but also a requirement for unified legislation on social credit to explore the basis for constitutional norms.In the era of the credit economy,personal credit information has become a vital resource for realizing personal autonomy.Along with the increase in the state’s supervision and control of personal credit,the realization of the autonomous value in the interests related to personal credit information has also set more obligations for the state.Therefore,interests related to personal credit information should be regarded as a constitutional right.Because of its significant economic interest and value,the right to personal credit information should be classified as a constitutional property right.As a constitutional property right,the right to personal credit information can not only help protect people’s economic interests,but also achieve the goal of safeguarding their personality interests.展开更多
Accessibility is the basis and prerequisite for persons with disabilities to enjoy and exercise all human rights and fundamental freedoms With the rapid development of the internet, providing and promoting informatio...Accessibility is the basis and prerequisite for persons with disabilities to enjoy and exercise all human rights and fundamental freedoms With the rapid development of the internet, providing and promoting information accessibility is considered an important obligation for the State In the process of transforming international human rights law into domestic law, how to deal with the human rights protection of persons with disabilities and the obligations of the private sector to ensure persons with disabilities receive services and products that meet the requirements and principles of information accessibility has become a development issue in the new era Against the backdrop of the Convention on the Rights of Persons with Disabilities and in the context of the booming development of the cause of persons with disabilities in China, legal scholars, persons with disabilities, and organizations have jointly proposed the Beijing Initiative on the Principles of Information Accessibility for Science and Technology Products It clarifies that the private sector should embrace the human rights model advocated by the Convention in terms of information accessibility, and provide equal participation for persons with disabilities in the process of designing, producing and selling scientific and technological products The Initiative also states that the private sector should keep pace with the United Nation’s sustainable development goals and the basic national policy of building a well-to-do society in an all round way, ensuring persons with disabilities are included within a moderately well-off society It also provides civil opinions on the formulation and clarification of relevant laws in the future.展开更多
In criminal procedures,the right to personal information does not conform to the human rights characteristics of criminal procedures centered on due process right,in which the right to be forgotten and the right to ac...In criminal procedures,the right to personal information does not conform to the human rights characteristics of criminal procedures centered on due process right,in which the right to be forgotten and the right to access data possess no attributes of independent litigation right.The theory of the independent right to personal information lacks a legitimate basis and should not be used as the protection model for personal information in criminal proceedings.Given the particularity of interest measurement and the individuality and negativity of human rights in criminal procedures,the protection of personal information in the criminal procedure should be aimed at the risk of transformation from collective general information to private sensitive information.Specifically,it is the right of personal information not to be excessively collected.Accordingly,the personal information protection should be included in the scope of criminal procedures by the conceptual interpretation of the informational privacy,i.e.,the dependency protection model.In this regard,the criminal proceeding should appropriately introduce the basic principles of personal information protection and the limited general forensic to deal with the impact and challenge of emerging right claim on the criminal justice system.展开更多
This essay focuses on expanding the traditional theory of personality right and referring to the outside legislative cases in order to promote environmental information disclosure,the purpose,therefore is to realize t...This essay focuses on expanding the traditional theory of personality right and referring to the outside legislative cases in order to promote environmental information disclosure,the purpose,therefore is to realize the ecological personality right.展开更多
Abstract:In the era of big data,the dual risk-based damage associated with personal information leakage presents unique chal-lenges.The unrealistic nature of objective risk-based damage without benchmarks and the high...Abstract:In the era of big data,the dual risk-based damage associated with personal information leakage presents unique chal-lenges.The unrealistic nature of objective risk-based damage without benchmarks and the high threshold for determining subjective risk-based damage have become obstacles for information subjects seek-ing compensation.Traditional approaches to supporting risk-based damage are inadequate in the realm of personal information.The theoretical support and compensation mechanisms for dual risk-based damage to personal information need re-exploration.The information subject’s control over the value of personal information assets based on the right to know forms the theoretical basis for objective risk-based damage.Additionally,the independence of mental suffering and the relaxation of the“serious”standard allow for a broader in-terpretation of subjective risk-based damage.In addressing claims by information subjects,first,courts need to assess and quantify the level of risk-based damage;second,legislation should introduce a statutory compensation system to define the range of personal information asset value,with a focus on the fault of personal information processors in civil liability;finally,establishing a special representative litigation mechanism can effectively address collective disputes over personal information infringement and alleviate the litigation burden on infor-mation subjects.展开更多
The bundle of personal information rights refers to a set of rights belonging to the subject of personal information,including the right to know,decide,inquire,correct,copy,delete,etc.Such a bundle of rights is usuall...The bundle of personal information rights refers to a set of rights belonging to the subject of personal information,including the right to know,decide,inquire,correct,copy,delete,etc.Such a bundle of rights is usually understood in Chinese civil rights legal circles as a civil right falling under the paradigm of individual autonomy and control,and is interpreted as a specific right to personal information.This understanding somewhat misinterprets the nature and function of the bundle of personal information rights.In terms of its nature,the bundle of personal information rights is the outcome of the state’s obligation to actively protect and empower individuals through institutional safeguards,and is thus essentially a means and a tool of protection granted to individuals by the state under the concept of protective law.In terms of its function,the bundle of personal information rights is both a tool enabling individuals to check and counterbalance processors of information and a strategy for the state to regulate data processors.Understanding the nature and functions of the bundle of rights from the perspective of state protection and regulation strategies helps to construct a fairer,more transparent and rational order of public law data governance under the concept of protective law and promotes the structural optimization and capacity enhancement of the data governance system.As an instrumental right under the state’s regulatory strategy,the implementation of the bundle of personal information rights needs to focus on facilitating the individual’s knowledge,participation and ability to negotiate under procedural justice,as well as the reasonable allocation of rights and obligations between individuals and information processors under distributive justice,with a view to continuously developing and enhancing the state’s regulatory rationality.展开更多
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 fo...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.China’s 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 China’s 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.展开更多
Introducing the human rights perspective into the multi-dimensional governance of human genome editing activities would help define boundaries for the behaviors of stakeholders such as the state, researchers, ethics c...Introducing the human rights perspective into the multi-dimensional governance of human genome editing activities would help define boundaries for the behaviors of stakeholders such as the state, researchers, ethics committee members, and the public, and clarify specific practices of these subjects or entities to meet the requirements of human rights obligations. Based on the human dignity principle, humans must never be used as a means to an end in scientific research. The right to physical and mental health requires the implementation of the principles of informed consent, the primacy of life, and risk control in genome editing, as well as the proper treatment of embryos. The right to privacy corresponds to the confidentiality obligations and non-intervention obligations of relevant parties, and the protection of sensitive personal information points to the special compliance requirements regarding information processing. Differential treatment of genome-edited humans requires objective and reasonable justification, and should also meet the requirements of the proportionality principle.展开更多
基金the“Application of the Dynamic System Theory in the Determination of Infringement Liability for Immaterial Personality Rights in the Civil Code”(Project Approval Number 2022MFXH006)a project of the young scholar research program of the Civil Law Society of CLS in 2022。
文摘The advent of the big data era has presented unprecedented challenges to remedies for personal information infringement in areas such as damage assessment,proof of causation,determination of illegality,fault assessment,and liability.Traditional tort law is unable to provide a robust response for these challenges,which severely hinders human rights protection in the digital society.The dynamic system theory represents a third path between fixed constitutive elements and general clauses.It both overcomes the rigidity of the“allor-nothing”legal effect evaluation mechanism of the“element-effect”model and avoids the uncertainty of the general clause model.It can effectively enhance the flexibility of the legal system in responding to social changes.In light of this,it is necessary to construct a dynamic foundational evaluation framework for personal information infringement under the guidance of the dynamic system theory.By relying on the dynamic interplay effect of various foundational evaluation elements,this framework can achieve a flexible evaluation of the constitutive elements of liability and the legal effects of liability for personal information infringement.Through this approach,the crisis of personal information infringement in the era of big data can be mitigated,and the realization of personal information rights as digital human rights can be promoted.
文摘Protecting personal credit information through constitutional rights is not only essemtial for individuals to defend against infringements on their personal credit information rights and interests by public power in the social credit system,but also a requirement for unified legislation on social credit to explore the basis for constitutional norms.In the era of the credit economy,personal credit information has become a vital resource for realizing personal autonomy.Along with the increase in the state’s supervision and control of personal credit,the realization of the autonomous value in the interests related to personal credit information has also set more obligations for the state.Therefore,interests related to personal credit information should be regarded as a constitutional right.Because of its significant economic interest and value,the right to personal credit information should be classified as a constitutional property right.As a constitutional property right,the right to personal credit information can not only help protect people’s economic interests,but also achieve the goal of safeguarding their personality interests.
文摘Accessibility is the basis and prerequisite for persons with disabilities to enjoy and exercise all human rights and fundamental freedoms With the rapid development of the internet, providing and promoting information accessibility is considered an important obligation for the State In the process of transforming international human rights law into domestic law, how to deal with the human rights protection of persons with disabilities and the obligations of the private sector to ensure persons with disabilities receive services and products that meet the requirements and principles of information accessibility has become a development issue in the new era Against the backdrop of the Convention on the Rights of Persons with Disabilities and in the context of the booming development of the cause of persons with disabilities in China, legal scholars, persons with disabilities, and organizations have jointly proposed the Beijing Initiative on the Principles of Information Accessibility for Science and Technology Products It clarifies that the private sector should embrace the human rights model advocated by the Convention in terms of information accessibility, and provide equal participation for persons with disabilities in the process of designing, producing and selling scientific and technological products The Initiative also states that the private sector should keep pace with the United Nation’s sustainable development goals and the basic national policy of building a well-to-do society in an all round way, ensuring persons with disabilities are included within a moderately well-off society It also provides civil opinions on the formulation and clarification of relevant laws in the future.
文摘In criminal procedures,the right to personal information does not conform to the human rights characteristics of criminal procedures centered on due process right,in which the right to be forgotten and the right to access data possess no attributes of independent litigation right.The theory of the independent right to personal information lacks a legitimate basis and should not be used as the protection model for personal information in criminal proceedings.Given the particularity of interest measurement and the individuality and negativity of human rights in criminal procedures,the protection of personal information in the criminal procedure should be aimed at the risk of transformation from collective general information to private sensitive information.Specifically,it is the right of personal information not to be excessively collected.Accordingly,the personal information protection should be included in the scope of criminal procedures by the conceptual interpretation of the informational privacy,i.e.,the dependency protection model.In this regard,the criminal proceeding should appropriately introduce the basic principles of personal information protection and the limited general forensic to deal with the impact and challenge of emerging right claim on the criminal justice system.
文摘This essay focuses on expanding the traditional theory of personality right and referring to the outside legislative cases in order to promote environmental information disclosure,the purpose,therefore is to realize the ecological personality right.
基金“A New Round of Reform and Reconstruction of the International Dis-pute Settlement Mechanism for Intellectual Property Rights and China’s Countermeasures”(Project Number 21BFX101),a 2021 General Project of the National Social Science Foundation of China。
文摘Abstract:In the era of big data,the dual risk-based damage associated with personal information leakage presents unique chal-lenges.The unrealistic nature of objective risk-based damage without benchmarks and the high threshold for determining subjective risk-based damage have become obstacles for information subjects seek-ing compensation.Traditional approaches to supporting risk-based damage are inadequate in the realm of personal information.The theoretical support and compensation mechanisms for dual risk-based damage to personal information need re-exploration.The information subject’s control over the value of personal information assets based on the right to know forms the theoretical basis for objective risk-based damage.Additionally,the independence of mental suffering and the relaxation of the“serious”standard allow for a broader in-terpretation of subjective risk-based damage.In addressing claims by information subjects,first,courts need to assess and quantify the level of risk-based damage;second,legislation should introduce a statutory compensation system to define the range of personal information asset value,with a focus on the fault of personal information processors in civil liability;finally,establishing a special representative litigation mechanism can effectively address collective disputes over personal information infringement and alleviate the litigation burden on infor-mation subjects.
文摘The bundle of personal information rights refers to a set of rights belonging to the subject of personal information,including the right to know,decide,inquire,correct,copy,delete,etc.Such a bundle of rights is usually understood in Chinese civil rights legal circles as a civil right falling under the paradigm of individual autonomy and control,and is interpreted as a specific right to personal information.This understanding somewhat misinterprets the nature and function of the bundle of personal information rights.In terms of its nature,the bundle of personal information rights is the outcome of the state’s obligation to actively protect and empower individuals through institutional safeguards,and is thus essentially a means and a tool of protection granted to individuals by the state under the concept of protective law.In terms of its function,the bundle of personal information rights is both a tool enabling individuals to check and counterbalance processors of information and a strategy for the state to regulate data processors.Understanding the nature and functions of the bundle of rights from the perspective of state protection and regulation strategies helps to construct a fairer,more transparent and rational order of public law data governance under the concept of protective law and promotes the structural optimization and capacity enhancement of the data governance system.As an instrumental right under the state’s regulatory strategy,the implementation of the bundle of personal information rights needs to focus on facilitating the individual’s knowledge,participation and ability to negotiate under procedural justice,as well as the reasonable allocation of rights and obligations between individuals and information processors under distributive justice,with a view to continuously developing and enhancing the state’s regulatory rationality.
文摘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.China’s 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 China’s 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.
基金phased result of the project “study on the legislation of genome editing in human embryos”(Project No. 19SFB2035)National Rule of Law and Legal Theory Research Program by the Ministry of Justice in 2019。
文摘Introducing the human rights perspective into the multi-dimensional governance of human genome editing activities would help define boundaries for the behaviors of stakeholders such as the state, researchers, ethics committee members, and the public, and clarify specific practices of these subjects or entities to meet the requirements of human rights obligations. Based on the human dignity principle, humans must never be used as a means to an end in scientific research. The right to physical and mental health requires the implementation of the principles of informed consent, the primacy of life, and risk control in genome editing, as well as the proper treatment of embryos. The right to privacy corresponds to the confidentiality obligations and non-intervention obligations of relevant parties, and the protection of sensitive personal information points to the special compliance requirements regarding information processing. Differential treatment of genome-edited humans requires objective and reasonable justification, and should also meet the requirements of the proportionality principle.
