빅데이터 시대 중국의 개인정보보호법률제도 현황과 입법과제 연구

Abstract

In many countries, personal information is defined by adoption of an identification type through legislation, but it does not provide specific criteria for the concept of user privacy. Therefore, it is a challenge to establish specific criteria for user privacy. In Germany, the EU protects user privacy rights with specific moral rights and emphasizes the control and control of government agencies on user privacy. Regarding the theory of user privacy, the majority of the opinions in the Chinese legal profession regard user privacy as personal right. The next generation of information technology has strengthened the social value of user privacy, particularly the legal protection of public policy and public safety. Although Article 38 of the Chinese Constitution and Article 120 of the Chinese Civil Law General Provision stipulate the protection of the moral rights of the Chinese people, there is a clear and detailed standard for the definition of "user privacy" and "legal nature of user privacy rights" Was not enacted. Since other provisions of the law on user privacy are partly normative, China has set out user privacy on the basis of "identifiability" of foreign user privacy. It should be improved soon. In addition, there is a problem that the legal documents are relatively ineffective, for example, many of the user privacy protection laws of China are issued by the State Council of China. In addition, in the event of infringement of user privacy, legal remedies through civil lawsuits can be considered. However, the information asymmetry between the professional technology and the user privacy subject related to the infringement of user privacy and the information manager makes the information subject more difficult to verify. In order to solve these problems, a special law type law should be enacted as soon as possible. In addition, the basic idea of user privacy protection law and the scope of user privacy should be clearly defined. In China, it is desirable to classify user privacy into two categories: sensitive information and non-sensitive information. It is also a good idea to establish a professional agency for the protection of user privacy according to the administrative level of the Chinese central and provincial level local governments. Ultimately, user privacy protection and supervision throughout China should be guided and co-ordinated by the Chinese government departments responsible for the work. Regarding the judicial relief of user privacy protection, a new burden of proof should be established. In view of the fact that the individual's ability to present evidence as an information subject is somewhat inferior, a new jurisprudence must be established in part regarding the burden of proof in litigation. For defendants who infringe on the right of privacy, the principle of differentiating between the different types of defendants can be determined on the basis of different points of infringement. In addition to alleviating the burden of proof of negligence, negligence assumption responsibility can also warn the information processor to fulfill its obligation to thoroughly comply with the security obligations, and consequently prudent use of user privacy can be established. In the Big Data era, China's user privacy protection law issues include, besides those mentioned above, the problem of ownership of user privacy, the responsibility of big data subject, the incineration of important data, the failure of big data supervision administrative law, Big data transaction monopoly problem, illegal data transaction problem, big data information privacy problem, big data pricing problem, data resource acquisition problem, big data resource utilization problem, big data resource protection problem, etc. In order to solve these problems, it is necessary to establish clear responsibility of big data transaction entity, improve important data incineration norm, improve big data supervision management system, regulation of illegal data transaction, limitation of big data subject ownership and internal limitation of big data right Must be revised through legislation.