The first issue of law papers in 2020
1. Information security mechanism of smart city users in London and Its Enlightenment to China
Tu Menghe cultivates Chen Bo, Department of e-commerce and law, Chongqing Institute of intellectual property, Chongqing University of science and technology, School of law, Shanghai University of political science and law
[Abstract] in order to alleviate the pressure of energy, education, medical treatment and other aspects brought by the influx of a large number of people into the city, many countries and regions began to focus on the concept of "smart city", try to communicate network management systems in medical, education, transportation and other fields, and develop technology applications that make people's lives more convenient. In the construction of smart city in China, the user information security is faced with huge risks, which mainly come from the fields of intelligent equipment, data service and information infrastructure. Based on the analysis of the user information security mechanism of smart city in London, this paper puts forward suggestions on the user information security mechanism of our country from three aspects: government supervision, laws and regulations, industry self-discipline. In the aspects of strengthening government leadership, government reform, improving laws and regulations, unifying industry regulations, establishing punishment mechanism, and improving user safety awareness, the improvement of user information security guarantee mechanism in smart cities in China still needs to be strengthened.
Keywords: London; smart city; user information security;
Fund: Chongqing social science planning and Cultivation Project: Research on user privacy security mechanism of smart city information platform (2018py101);
2. On the obligation of personal information security from the perspective of tort liability
Gao Zhengzhi School of law, East China University of political science and law
Abstract: there are many cases that the information subject's property rights or personal rights are infringed by a third party due to personal information leakage. The obligation of personal information security is the key to straighten out the relationship between rights and responsibilities between the parties. The obligation of personal information security is a kind of result obligation, and its subject of responsibility should be limited to the personal information controller in the field of business. We should distinguish between the protection of personal information property value and the protection of personal information for the purpose of "preventing intentional infringement", which is the protection content of personal information security obligation in civil law. In order to establish the tort liability system of violating the obligation of personal information security, the following rules should be established: the scope of relevant damages should be limited to the third party, that is, the direct infringer, who illegally obtains personal information, thus causing damage to the property rights or personal rights of the information subject; no fault liability should be applied; The intervention of the direct infringer does not constitute the interruption of the causal relationship between the personal information security obligor and the damage; in the sharing of the damages between the personal information security obligor and the direct infringer, the form of "supplementary liability" should be applied.
Keywords: personal information; security obligation; third party tort; constitution of tort liability;
Fund: project of Shanghai municipal government by law: Research on the open system of public data from the perspective of big data (kt2019002);
3. The application of big data in major administrative decision and its legalization
Li Lingyun Wang Jian Law School of Suzhou University
[Abstract] the application of big data in the field of major administrative decision-making belongs to the organic integration of technical rationality and decision-making rules. With information sources and technological innovation, big data can give new impetus to the transformation from traditional decision-making to digitalization. The application of big data runs through major administrative decisions. It has obvious practical advantages in market supervision, environmental protection and other matters, which can promote the efficiency of decision-making, improve the accuracy of decision-making, and enhance the linkage between decision-making organs. However, the application of big data may cause some problems such as the hidden worry of decision-making security, the space of personal data being squeezed and the responsibility of decision-making mistakes. The process of putting forward countermeasures for the above problems is actually the transformation from data governance to data governance. At this stage, we can not lack the guidance of laws and regulations. We should try to promote the legalization of big data application from the legal protection of decision-making data security system, legal protection of personal data, scientific construction of decision-making accountability mechanism and other aspects.
Keywords: big data; major administrative decision; information technology revolution; personal data; government by law;
Foundation: Jiangsu province graduate research and innovation program: Research on contractual review of administrative agreements (kycx19 ޤ); major research projects of philosophy and social sciences of the Ministry of Education: Empirical Research on the relationship between reform and the rule of law in the new era (17jzd004); graduate project of Anhui Research Center for rule of law and social security: Research on the legal regulation of artificial intelligence from the perspective of risk society (fzsh2018cx-24);
4. The legal position and regulation strategy of sharing economy
Wu ang School of law, Beijing University of Aeronautics and Astronautics
[Abstract] sharing economy is a hot topic in recent academic research, but the research in the field of law does not recognize its essence. From the perspective of the internal legal relationship of sharing economy, it is actually the new development of e-commerce in the era of mobile Internet, showing a dual-level structure of a large number of concurrent part-time and full-time activities, but the current regulation fails to notice this distinction. According to the theory of legal pluralism, the regulation of sharing economy should be guided by keeping various choices and abandon the one size fits all traditional regulatory thinking. At the same time, we should build a hierarchical supervision system in which the government and the sharing economy platform cooperate with each other and share full-time and part-time.
Keywords: sharing economy; e-commerce; two-stage structure; legal diversification; hierarchical supervision;
Fund: National Social Science Foundation major project: Research on the construction of ecological civilization legal system (14zdc029);
The second issue of law papers in 2020
1. On the method of determining the amount in the proof of network crime
Wang Zhigang, Liu Sizuo, School of Cyberspace Security and information law, Chongqing University of Posts and Telecommunications
[Abstract] network crime usually has the characteristics of massive crime objects. The amount of money involved and the amount of data are often very large, which is difficult to accurately measure, but the determination of the amount will directly affect the conviction and sentencing of the case. In this regard, the academic community has put forward a variety of response methods, such as equivalent measurement, sampling evidence collection, bottom line certification, etc., but each has its own advantages and disadvantages and the specific use methods are not clear. Through the analysis of the amount determination involved in the typical network crime, it can be found that the existing calculation methods are difficult to adapt to the specific situation of the network crime case alone. In this regard, we can determine a kind of hierarchical choice and use of ideas, that is, the bottom line proof as the first choice, the sampling evidence as a supplement, the comprehensive identification as a backup, to systematically solve the problem of the amount of cybercrime.
Keywords: network crime; amount determination; method analysis; solution;
Fund: Youth Fund of Humanities and social sciences of the Ministry of education project: Research on evidence rules in the prosecution of cyber crime (19yjc820057);
2. Research on tort liability of online car Hailing platform under social vehicle mode -- Based on judicial case study of online car Hailing tort
Huang Dongdong, Zhang Yuqi, School of Cyberspace Security and information law, Chongqing University of Posts and Telecommunications
[Abstract] the types of legal relationship of online car Hailing platform are diverse and complex, and the current tort law is difficult to properly solve the problem of tort liability of online car Hailing platform in the network information age. The nature of the legal relationship between platform and online car Hailing drivers is the legal basis for the construction of platform tort liability. The construction of the tort liability of the online car Hailing platform should seek a balance between the protection of the legitimate rights and interests of the victims and drivers and the control of the operation risk of the platform, as well as between the public safety and the development of the online car Hailing industry. The platform under the "hitchhiker mode" shall bear joint tort liability for breach of safety and security obligations, which is manifested as supplementary liability or joint liability due to different negligence or intention; the platform under the "franchising mode" shall bear direct tort liability as a carrier, but the division of its internal liability is based on whether it constitutes a labor relationship.
Keywords: online car Hailing platform; tort liability; interest measurement; Shunfeng model; franchise model;
Fund: Ministry of Education Humanities and social sciences research planning fund project: Research on legal aid system in grass-roots social governance (19yja820018);
3. On the "inheritability" of social network account
Zhu Tao, Zhang Zhenfang, School of Cyberspace Security and information law, Chongqing University of Posts and Telecommunications
[Abstract] social network account conforms to the basic characteristics of the utility, scarcity and controllability of property, has the legitimacy as property, and should be included in the property category confirmed by inheritance law. At present, the network platform stipulates in its user service agreement that the social network account belongs to the operator and shall not be inherited, which is unfair due to the exclusion of the main rights of the user, and belongs to the invalid situation of the format terms. The social network account shall be owned by the user; while the social network operator refuses to inherit the social network account on the basis of privacy protection, Its purpose is to protect their own interests, not the privacy of the deceased. The protection of the privacy of the deceased in modern civil law is essentially to protect the identity interests of the close relatives of the deceased and related stakeholders, so there is no essential conflict between social network account inheritance and privacy protection. Based on the respect of users' will, the establishment of social network account inheritance rules should respect users' right of choice, which can be determined by the user's pre-set during registration, whether the account can be inherited, by whom and by what.
Keywords: social network account; property attribute; user service agreement; ownership; privacy protection;
Foundation: Ministry Project of China Law Society: Research on the language of civil legislation in the context of codification (CLS [2017] D74);
4. The dilemma and localization of EU data portability
Diao Shengxian, Li fangqin, School of Cyberspace Security and information law, Chongqing University of Posts and Telecommunications
[Abstract] in the general data protection regulations, the European Union creatively stipulates the data portability rights, in order to enhance the data subjects' control over their personal data and promote the innovation and development of the local Internet industry in the European Union. As a new right, data portability is not only full of hope, but also caused worldwide controversy. Through the analysis of the evolution, value, elements, exercise and difficulties of data portability, on the premise of affirming its strengthening and promoting the legal protection of personal data, facing its shortcomings and disadvantages, and combining with the current situation of China's industrial development and personal information protection legislation, it is helpful for its localization thinking. At present, China should not blindly introduce or blindly reject the data portability right. We should learn from its experience and make a local choice according to the specific national conditions, and build the content of portability right suitable for China, so as to realize the balance between the development of China's data industry and the protection of personal data subject's rights and interests.
Keywords: data portability; general data protection regulations; rights framework; localization;
Fund: National Social Science Foundation Project: the construction of personal information rights and obligations system in the perspective of big data strategy (17bfx193); Chongqing graduate research and innovation project funding; Chongqing graduate innovation education program project: legal regulation of personal information disclosure (cys18256);
1. Journal of Chongqing University of Posts and Telecommunications (SOCIAL SCIENCE EDITION); 2. Sponsor: Chongqing University of Posts and telecommunications; 3. Issue: bimonthly; 4. Place of publication: Editorial Department of Journal of Chongqing University of Posts and Telecommunications (SOCIAL SCIENCE EDITION), No. 2 Chongwen Road, Nan'an District, Chongqing; 5. Zip code: 400065