剩余控制权机制设计与数据流通秩序的法律治理

现实的权利不可能在法律文本中被完全界定,无论作为社会契约性质的法律抑或作为当事人之间交易性质的合同都存在空白、模糊甚至冲突之处,但在法律的执行和合同的履行中,最终会由不完全契约中拥有剩余控制权的一方(不仅仅是当事人)确定,因此权利的实现程度是由剩余控制权决定的。为降低数据流通的交易成本,《民法典》明确将数据权益作为民事权利的客体予以保护,但却选择性地搁置了对数据进一步确权的问题。当数据权益无法清晰界定或者清晰界定的成本过高,依据机制设计的要求,通过对数据流通过程中重要环节、关键辅助环节或主要运用场景中的剩余控制权进行合理配置,可以在一定程度上弥补法定权利界定模糊的问题。由于决策信息成本的约束和政府激励手段的有限性,不可能通过正式制度将剩余控制权配置得完美无缺;而明确将某一剩余控制权配置给当事人、第三方专业机构等,依然是希望市场机制发挥基础性作用的一种配置。中国目前关于数据权益保护和促进数据流通的规则选择已经走向“责任规则+管制规则”的组合模式,可以运用诸如标准合同、企业数据保护信誉机制、技术标准、数据资产和数据侵权赔偿定价机制等,对某些重要的剩余控制权配置予以明确,以支撑相应法律规则的...

Residual control rights, mechanism design and legal governance of data flow order

Realistic rights cannot be defined completely in legal texts. There must be blanks, vagueness and even conflicts in the law as a social contract or a contract as a transaction between the parties. However, in the implementation of the law and the performance of the contract, will ultimately be determined by the party (not just the parties) who has the remaining control rights in the incomplete contract, so the degree of realization of the right is determined by the remaining control rights. Although the Civil Code clearly protects data rights as the object of civil rights to reduce the transaction cost of data circulation, it selectively sets aside the issue of further confirmation of data rights. When rights and interests of data cannot be clearly defined, or the cost of definition is too high, according to the requirements of mechanism design, the vague definition of legal rights can be made up to a certain extent through reasonable allocation of the remaining control rights in important links, key auxiliary links, or main application scenarios in the process of data circulation. Due to the constraints of decision-making information costs and the limitations of government incentives, it is impossible to allocate residual control rights perfectly through a formal system; and to clearly allocate a certain residual control rights to parties, third-party professional institutions, etc., it is still hope that the market mechanism is a configuration that plays a fundamental role. China''s current selection of rules on rights and interests of data protection and promotion of data flow has moved towards the combined mode of "liability rules + control rules". Such as standard contract, enterprise data protection reputation mechanism, technical standards, data assets and data infringement compensation pricing mechanism, etc., can be used to clarify some important allocation of residual control rights, support the implementation of relevant legal rules or making up for their deficiency. Here are some concrete examples related to the above. A standard contract can adopt a combination of "general terms + special terms"; the enterprise data privacy protection reputation mechanism can set up a hierarchical disclosure mechanism to specifically determine the disclosure content, disclosure method and disclosure scope; the formulation and improvement of technical standards should clarify the target positioning, roughness and detail of the standard, and how to coordinate with the hard law as a soft law; and the data assets and data infringement compensation evaluation made by a third-party evaluation agency should be the basis for bargaining between the transaction parties or court judgment, but it is not suitable to be compulsorily stipulated as the transaction price. This function similar to decentralized legislation can not only accumulate experience, but also reduce the cost of legislation and the social cost of legislative failure. Consequently, in the face of the system construction problem of how to manage the data flow, a realistic and feasible approach is to continuously improve the construction of data-related legal systems and supporting measures through the continuous accumulation of effective mechanism designs.