【作者】 杨金丹；

【导师】 李建华；

【作者基本信息】 吉林大学 ， 民商法学， 2010， 博士

【摘要】 目前,我国民法学界对于隐私权乃至网络隐私权都有着一定的研究基础。本文对网络隐私权的分析和研究一方面当然是以此前的研究为基础的,但另一方面,本文特有的研究视角是,在隐私权的权利演进的脉络中,研究网络隐私权相对传统隐私权而言在权利内容、性质等方面的发展及相应的理论上的进展。本文认为,工业社会的发展及19世纪以来的大众传媒、瞬间成像技术的出现,使得隐私权作为一种新型权利得以出现并在法律上得以确立;同样,网络社会的兴起和作为第三次技术革命核心内容的网络技术的发展,给予了网络隐私权的理论和实践以前所未有的冲击,这要求我们对网络隐私权理论,对网络隐私权的权利内涵、性质以及网络隐私权侵权行为和侵权责任等方面进行全方位的重新审视和分析,思考在新的社会环境和新兴技术冲击下隐私权的权利演进和理论发展。正是在这一权利演进的研究视角下,本文思考了网络隐私权相对于传统隐私权在理论上的发展和进步、以及在此基础上中国网络隐私权私法保护体系的建构和完善的问题。更多还原

【Abstract】 Nowadays, a certain research about privacy and even internet privacy in civil law area has been studies in our country. In this study, the analysis and research about internet privacy are detected. On the one hand, it is based on the previous studies; on the other hand our study is characterized as the relationship between the scope of privacy rights and privacy theory itself with the development of the society and the improvement of the technique. Just under the view of the right evolution, we thought the development and improvement of internet privacy compare to traditional privacy and the construction of the private law system in china internet privacy.The text is divided into five chapters except for the introduction and the conclusions.Chapter 1, We try to detect internet privacy in its right to development context. Firstly, in the right to development context outlined for privacy rights, the privacy as a new right is connected with the technical development and the vicissitudes of polity, society, and economy. Since the appearance of the social change, the mass media and imaging technology in nineteen centuries, the installation of the traditional property right aim at the protection of the individual personal and property power has some limitation. It shows that although the privacy can draw a private domain, which we can not access to if unauthorized, it can not inhibit the invasion of personal private spaces under the benefits driven with public peep desires and mass media. Therefore, the privacy is proposed as a new right and gradually establishes the status of their rights in law. It can be said that because the social change brought by the technical development make identify and determine the new right–privacy rights necessary. On the basis of the investigation in the society in which the new right-privacy emerged in nineteen centuries, we further investigate the legal philosophical foundation stone started in privacy. And then the connotation and character of privacy is defined. Secondly, the social changes brought by the social emergence make the theory and practice of the privacy further evolve and develop. If the modern industrial society metaphors as panopticon, it will vividly reveal that it is necessary for modern people with rights, restrictions on freedom, crushing, and generation of privacy. Then the panopticon metaphors about the internet social demonstrate new impact and challenge above the privacy protection in the internet society. Internet privacy is not only a domain enlarged in virtual space of privacy theory, but also a thought that the internet privacy with regard to the development and evolution of internet privacy on the view of the changes brought from the internet society. Therefore, under the social background in the start of internet society, the development and evolution of internet privacy compared with traditional privacy is investigated. We also research how to perform protection of private law in the China internet privacy.Chapter 2, Under the background in the start of internet society, we try to specifically inspect the right location and protection ways of internet privacy compared to traditional privacy. Firstly, on the nature of the right, internet privacy compared to personality right and moral rights of traditional privacy not only possess personality right to property but also property right property. So, the internet privacy possesses both personality right and property right property. Secondly, on the composition of the right, the internet privacy has a breakthrough compared with traditional privacy in subject of rights, the right object and right guest. Under the internet condition, the subject of privacy must be the idea of the national person which was impacted. On the traditional idea, the human shame is the only source as the privacy and then the subject of the privacy only fixed at the national person. However, with the development of the internet, the center of the internet privacy shifts to the privacy in personal data. More and more researchers start to think it is possible that the enterprose and other social organizations is the subject of the internet privacy. On the object of the privacy, with the emergence of the internet, the independence space of non-natural person principal, individual services, and individual message, which are not included in privacy range before, may be the object of the privacy in the internet period. On the content of the privacy, the content of internet of privacy include the negative content about the right of free intrusion, and the positive content about control and usage of the privacy. The positivity and motility of the internet privacy reflect that the content of the internet include the right to know of personal data message, the dominance right of personal data message, and the browsing and updating right. At last, on the protection ways of the internet privacy, in the spontaneous order of the network society, the principle of autonomy of private law strongly dominate the relationship among the subjects of the internet. Therefore, with regard to the protection of the privacy in the internet society, the protection way with the private law is the main pretention way. The protection ways in private law about internet privacy included two sides, one is legal way of the internet privacy, and the other is autonomy way of internet privacy.Chapter 3, Special kinds of states of the behavior of internet privacy and the traditional privacy are discussed. Under the internet condition, the encroachment of the privacy, the subject of tort, and the ways of the tort have prodigious changes. But these changes bring substantial challenge in the problem in thinking the privacy civilly. Firstly, the text defines the behavior of internet privacy. Compared with privacy of traditional privacy, the behavior of internet privacy possesses particularity in infringing sites, technical and crypticity in tort, difficultly in determination, multiple in tort, and global in tort impact. Meanwhile, types of approach are used in our study, and the behavior of internet privacy is divided in order to grip the full view of the tort in internet privacy on an abstract level. Then, the special subject of the behavior of internet privacy is analyzed. Compared with the behavior of traditional privacy, government and enterprose tort of electronic commerce, and the equipment supplier and internet facilitator tort show different characteristics, because the difference in infringement occasions of the privacy. Besides, in the main part of the tort, it is either the tort specific in the tort behavior of internet privacy, or the tort-like state has changed in the tort behavior of internet privacy. At last, we analyze the unusual form of the tort behavior of internet privacy under the specific infringement means of the behavior of internet privacy. Compared to the tort behavior of the traditional privacy, the development of technical means of internet privacy infringement make the internet privacy infringement possess more widespread, privacy and damaging consequences. Meanwhile, it will not conducive to definite the behavior of the internet tort and protect the legitimate rights and interests of the client.Chapter 4, Tort responsibility and methods of bearing civil of the internet privacy infringement are discussed. Firstly, on the responsibility of the internet privacy infringement, two paratactic responsibility principles are employed according to the subjects of the internet privacy infringement: with regard to tort responsibility of violations of the privacy for general internet users, the principle of fault liability is used; while with regard to tort responsibility of violations of the privacy for service providers the reasonable responsibility principle, which is doctrine of presumption, is used from the standpoint of the allocation of responsibilities between the service providers and general internet users in internet activity. Secondly, although the responsibility principle of tortious liability in internet privacy invasion applies fault liability principle and the principle of presumption of fault according to the differences among the subjects of the tort, on the basis of the analysis in the two responsibility principles, the constitutive requirements between them is basically the same as each other. That is to say the“Four elements”in tortious liability of internet privacy: the illegality of the behavior of internet privacy infringement, the damage of the victim, the causal relation, and the fault. At last, the characteristics of the bear form in tortious liability of internet privacy are analyzed and several major civil manners of the tortious liability of internet privacy are discussed.Chapter 5 Specific to the current situation of the internet development and the current situation and characteristics of the internet privacy infringement, we think how to construction and consummate the problem about the private protection of internet privacy. Firstly, to construct and consummate the private protection of internet privacy in our country, we must analyze and reflect the present system of private protection of internet privacy. Therefore, at the beginning of the text, we analyze the characteristics of the internet society in our country and the status infringement of the internet privacy. Then, the text comprehensively inventories the present private law system between the traditional privacy and internet privacy. On the basis of the inventory, we analyze and reflect the defects and deficiencies, and point out that the private law protection system aim at privacy and internet privacy can not truly achieve effective protection of them. Secondly, on the basis of the thought and reflection, the paper considers how to construct and perfect judicial protection system for network privacy right We investigate the protection mode and development tendency of internet privacy abroad, then according to the development tendency and the current situation of China internet society, we think the real choice of the protection mode of China privacy. At last, we point out that the perfection of the private protection of the internet privacy should be carried out from two aspects; one is to construct and consummate private law legal system of internet privacy, the other is to construct and consummate autonomy of private law system of internet privacy. The autonomy of private law system of internet privacy is an effective complement to the private law legal system, and neither is dispensable.In the conclusion at the end of the text, we simply conclude the challenge of the internet society to the privacy theory, and how to respond to the challenge in theory. For the research and structure of the internet privacy, it must appear new problems with the development of the internet society, and new theory to respond. The theory show evolving state according to the social change and theoretical challenges, which is the charm of the theory itself.更多还原