Authentication on data as an emerging legal benefit
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D924;D922.16

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    Abstract:

    The Data Security Law of the People's Republic of China was passed in June 2021 and officially implemented in September of the same year. However, there are still many important issues to be debated and to be resolved, one of which is whether data can be legally protected as an emerging legal interest. One thing needs to pass the three-dimensional four-path seven-rule review in order to become the legal benefit of criminal law. If it belongs to the emerging legal benefits, it needs to be reviewed by the emerging comparative dimension. Among them, the three dimensions mean, subject restriction dimension, interest specification dimension and legal balance dimension. The four paths refer to the four review paths of whose interests to protect, what interests to protect, why interests should be protected, and how to protect interests. Whose interests to protect corresponds to the subject restriction dimension, what interests to protect corresponds to the interest specification dimension, and why the interests should be protected and how to protect interests correspond to the legal balance dimension. The seven rules refer to the following starting points. From the perspective of subject constraints, there are the following two rules:"protecting human interests:criteria of usefulness to humans (Rule 1)"; "protecting the interests of unspecified majorities:criteria for unspecified majorities (Rule 2)". From the perspective of normative interests, there are the following three rules:"protection of life interests:criteria of empirical reality (Rule 3)", "protection of manageable life interests:criteria of management possibility (Rule 4)", "protection of vital interests:criteria for vital interests (Rule 5)". From the perspective of system balance, there are the following two rules:"actual infringement (danger) of interests:criteria for the possibility of infringement (Rule 6)", "necessity of criminal law protection:criteria of legal interest subjects and other laws difficult to fully protect (Rule 7)". In the era of big data, data legal benefit needs to advance from the phenomenon observation level to the theoretical construction level. Therefore, data, through the review of the judgment rules of legal interests theory, can become an emerging legal benefit and has the legitimacy of criminal law protection. The promulgation of the "Data Security Law of the People's Republic of China" is a legislative declaration for the protection of legal interests based on the important value of data to individuals, the society and the country. Specifically, personal data is a purely emerging legal benefit; corporate data and national data are impurely emerging legal benefit. Data legal benefit can be divided into original value interests and derived instrumental interests. The object content of data legal benefit can be expressed as the usefulness, integrity, confidentiality and security of the data.

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黄鹏.数据作为新兴法益的证成[J].重庆大学学报社会科学版,2022,28(5):192~206

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  • Received:
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  • Online: November 07,2022
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