【作者】 曾璐；

【导师】 李建华；

【作者基本信息】 吉林大学 ， 民商法学， 2010， 硕士

【摘要】 信息社会中个人信息被大量收集和利用,这给我们的生活带来便利的同时,也严重威胁到个人信息安全。各国均认识到个人信息保护的重要性,并出台了相关立法。由于历史与文化传统等多方面原因,以往我国对个人信息保护重要性的认识不足,个人信息法律保护的相关制度也不完善,因此我们应对个人信息法律保护给予关注。本文以民法领域为着眼点,就个人信息民法保护的一些基本问题进行探讨。个人信息的民法保护,首先应关注个人信息的界定与民法性质。本文认为个人信息的识别型定义较为科学,并提出人格权是个人信息民法保护的权利基础。随着个人信息所体现的商业价值日益明显,个人信息财产化趋势显现出来。个人信息的财产权保护遇到了理论障碍,本文通过分析批驳了这些观点,并得出个人信息可以具有财产属性。尽管人们对个人信息保护的必要性基本达成了共识,但是各国立法所采取的保护模式有所不同,主要可分为自律主导模式与立法主导模式两种。经过分析得出,我国个人信息的民法保护应借鉴立法主导模式,尽快出台个人信息民法保护的相关立法,对个人信息本人的权利、个人信息收集者或使用者的义务以及侵害个人信息的民事责任等予以明确规定,以期构建完善的个人信息民法保护制度。更多还原

【Abstract】 With the accelerated process of social information, the Internet and information technology has brought revolutionary changes in production and life of mankind, but also triggered a threat to the security of personal information. Personal information is improperly collected, used, the protection of personal information has been a great situation. This paper, focus on areas of civil law, explore some basic questions on civil law protection of personal information. This article is divided into three parts:The first part discusses the definition and nature of personal information. First, clear the concept and characteristics of personal information. Personal information is information that relative with clear or identifiable natural person. The so-called identifiable person is one that can directly or indirectly identified. It has three characteristics: 1. Personal information can be directly or indirectly identify the identity of someone; 2. Personal information is diversity; 3. The subject of personal information is natural persons. Second, it analyzes the civil nature of personal information. There is a consensus that personal information should be protected by the Civil Code, but the nature of the civil law of personal information is controversial. The main viewpoints include the object of privacy, the object of the right of personality, the object of the new right. The USA is the representative of the object of privacy right . Privacy originated in the United States. Privacy is recognized as an independent privacy rights in "the second Restatement of Tort Law", and provides four types: the irrational use of another’s privacy, unauthorized use of another person’s name or portrait, unreasonable public private life of others, expose false impression of others. In civil law countries, the right of privacy is parallel with other rights such as the right of name, right of portraiture and right of reputation. The scope of privacy is smaller than that of the U.S. law. Chinese legislation followed the continental law system and has constructed the system right of personality. The scope of privacy is smaller than that of American Law. This article believes that rights of personal information should be based on the right personality, not privacy. In addition, this paper discusses the property problem of personal information. As a scarce resource, the property of personal information directly reflected in the commercialization use of personal information and the secondary development of personal information. As a personality right, property rights protection of personal information encountered obstacles, from traditional property rights theory, the tort law to protect views and the traditional theory of moral rights. This article refuted on the three.The second part discusses the need to protect personal information and civil law protection model of personal information. First, I research the need for civil law protection of personal information. Protection of personal information should include civil, administrative and criminal combination of three levels. As the civil protection of private life is the core of the field of personal information protection, the role of civil law protection should be fundamental. The need for civil law to protect personal information is reflected in three aspects: first, establishing the system of civil law protection of personal information is necessary to protect the interests of private citizens; second, the establishment of civil law protection of personal information is the need for information market failure; third, establishing the system of civil law protection of personal information is to adapt the international situation. Secondly, I discuss the general and civil law protection mode of personal information. General protection of personal information is divided into self-led mode and legislative-led. The mode of self-discipline, represented by the United States, emphasizes on personal autonomy and corporate self-discipline, and focus on the limit government authority to intervene. The European Union is the representative of Legislature-led mode. This mode is characterized by a uniform legislative approach, trying to adjust the conduct related to personal information by detailed rules. Through comparative analysis of two models, we get we can not rely entirely on autonomy and self-discipline to protect personal information, we should learn from legislative-led model, which has detailed provisions for the rights and obligations and responsibilities of personal information. At the same time, we should consider the conditions of our nation, in order to attain the utility of Legislative regulation and market discipline, personal information protection and industry relations.The third part puts forward personal information protection in the civil legislation. First of all, the protection of personal information should clearly define the subject of rights. Confirmation and allocation of rights and obligations has important links, the paper classifies relative subjects as owners, other information providers, collectors of personal information and personal information of users according to the status of legal relations in the civil protection of personal information. Second, the rights on personal information should be cleared. Rights on personal information should include the right to decide, query, correct, block and delete. Fully protecting personal information owners in the exercise of their rights, the author believes that right should be limited appropriately and personal information protection and rational use of information should be combined to prevent the abuse of civil rights. Third, collectors of personal information should be clearly defined. The user’s obligations, including obligations to help and prompt, fairly use and reasonably care and remedies after the occurrence tort and so on. Fourth, personal information should be clearly defined against the civil liability. Liability Principle should be used on distributions liabilities for infringing personal information. The thesis demonstrates the essential elements of personal information and discusses the specialties about tort liabilities on infringements, damages, faults and causalities. Finally, liabilities for tort actions on personal information and exemptions are listed and.Conclusion can be drawn through demonstrations above that the civil legislation of personal information protection in China has predominated theoretical basis and is essential in practice. It’s time to do the legislation and first step has been moved. What’s more, foreign civil legislation of personal information protection should be used as a source of reference on defining natures and regulating civil rights, obligations and responsibilities to establish the civil system of personal information protection.更多还原