Optimize the Form of Personal Data Protection Rules Under Data Platforms ——From Soft Law Embedded in Hard Law
Bao Kun1,2
1. KoGuan School of Law,Shanghai Jiao Tong University,Shanghai 200030,China; 2. China Institute for Smart Court,Shanghai Jiao Tong University,Shanghai 200030,China
Abstract：Personal data is an important factor of production under the data platform.To protect and keep the balance of interests in personal data is an essential issue in the digital economy.However,the tort liability law has some normative limitations.The protection of interest is subject to conflicting and weakened legal rules at the discretion of judges,and the protection of right suffers from technical limitations of legislation and high marginal costs of governance.To deal with them,technical standard as a kind of soft law plays a normative advantage in terms of the elementalization of the rules of obligation and the interest-oriented mechanism of restraint.Therefore we should take the international technical standard ISO/IEC 27701 as a soft law example to explore the way to transform the obligational rules and optimize the normative function in protection of personal data right.After analysis,we find it is still necessary to build a hard law environment for creation of technical soft law,connect the application of technical soft law in judicial trials,and promote the co-rule of hard and soft law in the protection of personal data rights in China.
鲍坤. 数据平台下个人数据保护规则形态的优化——从软法对硬法的嵌入谈起[J]. 中国科技论坛, 2022(3): 156-165.
Bao Kun. Optimize the Form of Personal Data Protection Rules Under Data Platforms ——From Soft Law Embedded in Hard Law. , 2022(3): 156-165.
2022, 
