中国数据可携权的赋权法理问题与完善进路

Abstract

Under the background of digital economy, data, as a new factor of production, plays an extremely important role in resource allocation. The collection, storage and transfer of personal data are gradually normalized, and personal data has become an important resource for public management, social services and business competition. However, the problem also emerges. How to realize the free flow of data while protecting the rights of data subjects to their personal data, and create a win-win situation between the protection of personal data rights and the development of digital economy is a major problem facing the world. The emergence of the portability right of personal data undoubtedly provides ideas for the solution of this problem. In the exercise of this right, the data subject can independently control the flow of personal data among different data controllers, which has the dual effect of enhancing the self-determination right of the data subject and promoting the competition in the data market. At present, the European Union, some states of the United States, Brazil and other countries and regions are formulating laws to raise the right of data portable as a personal data right, and there are also relevant provisions in China's Personal Information Protection Law. As a response to the protection of personal information in the digital age, the right to data portability has a far-reaching significance in protecting the data control rights of users and the barrier-free data transmission. Major countries in the world are already building localized specific specifications for the right to carry personal data, and it will reach more countries and regions in the future. The right to carry personal data is not only related to personal interests, but also an important means to develop the digital economy and realize the marketization of data elements. Therefore, China should also timely build a specific system for the right to carry personal data with Chinese characteristics according to its national conditions. Based on the normative interpretation of China's Personal Information Protection Law, the practical needs of data subjects to realize the right of personal information, and the useful reference of the judicial practice of countries outside the region, the data portable right has further applicable legal logic. The portability of personal data is an extension of the rights and interests of personal information in the Civil Code of China. The establishment of this right can effectively strengthen the individuals' possession and effective control of data, which can not only enable individuals to gain personality independence in the digital economy, but also become a beneficiary of data contribution and reuse. The study of the right to data portability is conducive to improving the personal data protection system, and further clarifying the data ownership and transfer between individuals and enterprises, and between enterprises and enterprises. Unfortunately, there are still disputes between the property right and the personality right in the legal property of the current data portable right, and the fuzzy exercise rules and the confusion of the scope of application lead to its unsatisfactory effect. In view of the problems of the right to data portability, China build personal data carrying system can draw lessons from the European Union and other countries mode and system specification, but not copy, it is in the practice of carrying data at home and abroad and mode analysis and research under the premise of, conform to China's national conditions and the development status of the specific design. Firstly, the dual attribute of “property right + personality right” should be clarified. It not only fully reflects the personal characteristics and rights of the data subject, but also highlights the economic value created by the personal data for the data subject.