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Author = Jin Jing Excerpt from "Data Transaction Law"
Introduction: A Legal Toolbox for Data Transactions
Purpose
1. The three dimensions of data transaction law: policy, theory, and rules
2. The dichotomy structure of the data transaction method: general and sub-arguments
3. A two-sided view of the legal toolbox: the EU model and Chinese rules
4. Acknowledgments
Data transaction is the core issue of data law, and it is also a new proposition of modern law.
Data transactions are not strictly a legal concept. Similar to auto trading and energy trading, data trading is a descriptive, non-specialized conceptual term. It is difficult for data transactions to be defined as a specific legal concept with clear extension and connotation, data transactions cannot be classified into some existing typical contracts, and it is difficult for data transactions to be determined as a new type of contract.
Data transaction is a concept of economic life, which describes the facts of life in the era of digital economy. Data transaction is also a "pocket" concept, which includes all kinds of transaction behaviors of the market-oriented circulation of data elements, and data exchange and data space are the tangible organizations and intangible fields for data trading activities.
What is the difference between a data approach and a traditional sectoral approach? Compared with the departmental law that is divided according to the social or functional field, the data law presents a complex appearance that is very different from the traditional civil law and administrative law. Taking data transactions as an example, the private law rules of data transactions have not yet been clarified, and it remains to be clarified how data transactions can be connected with systems such as contract formation, breach of contract remedies, and standard clause control. The public law aspect of data transactions is "lingering", and data circulation is intertwined with public law propositions such as data regulation and national standards, which are related to national security, data security and public interests. Whether data law should continue the traditional legal doctrine (Rechtsdogmatik) tool or construct a new legal tool (legal system) is the challenge of the times faced by legislation, justice and scholarship.
1. The three dimensions of data transaction law: policy, theory, and rules
Freedom of contract is a fundamental value of modern trading rules. Freedom of contract means that everyone can decide whether or not to conclude a contract (freedom to conclude a contract), and to decide freely what the contract is about (freedom of content) and what form of the contract (freedom of form). However, freedom of contract is by no means unlimited, and it is subject to different restrictions at different stages of economic and social development. In the era of the digital economy, has the freedom of contract been subject to new restrictions? How to provide better supervision for the market-oriented circulation of data elements? What kind of law toolbox is needed for data transactions?
Entitled "Data Transaction Law: EU Model and Chinese Rules", this book unfolds from three dimensions: legal policy, legal theory and legal technology:
First, the dimension of law and policy. Policy motives shape the rules of law. The initial question of the legal policy lies in the policy stance of the mainland's data transaction legislation. Although data circulation is a common proposition that different legal systems, jurisdictions and international uniform law must face, data regulation increasingly shows the strategic meaning of national competition. The essence of data regulatory competition is that countries seek to take the lead in the global digital economy, and data regulation has become a new track for national competition in the digital era.
Second, the dimension of legal theory. Legal theory supports the construction of the system. The question that legal theories urgently need to respond to is whether classical legal theories are sufficient to apply in the face of emerging forms of data transactions. Different from traditional commodities or assets, data has the characteristics of non-competition, non-consumption, and non-absolute exclusivity, and the value of data is not only limited by the volume, type, and completeness of the data, but also closely related to the algorithm. Although the contract is the main transaction structure of data circulation, it is worth exploring whether the classical contract law theoretical system based on tangible objects can meet the practical needs of data transactions, and what obstacles there are.
Third, the dimension of law and technology. The canonical function is the target of the rule configuration. Data transaction legislation can be described as "pulling a trigger and moving the whole body". What is the legislative objective of data trading? How should different legal values such as public order, autonomy of will, transaction security, and transaction efficiency be balanced? How can data transactions integrate the value of public and private law? Should legislators radically update the existing legal system, or should they introduce new systems of rules and regulations in a minimally invasive format where necessary?
2. The dichotomy structure of the data transaction method: general and sub-arguments
The book is divided into six chapters, which are interrelated and self-contained:
Chapter I: Legal Competition in Data Regulation
Chapter 2 The Global Paradigm of Data Regulation
Chapter 3 Theoretical Basis of Data Circulation
Chapter IV: Digital Product Contracts
Chapter V: Legal Tools for Data Flows
Chapter VI Standard Contractual Clauses
The content of the above six chapters can be divided into three levels: macro, meso, and micro:
At the macro level (Chapters 1 to 2), the purpose is to extract the research topics related to law and policy and law technology related to data transactions from the policy positioning and paradigm observation of data regulation.
At the mesoscopic level (Chapter 3), based on the theory of private law, this paper examines the application space of contract law theory and system, such as contract formation, contract type, standard clause, and breach of contract remedy in data transactions.
At the micro level (Chapters 4 to 6), the specific transaction structures such as digital product contracts, data transmission contracts, and standard contractual clauses are partially observed.
According to the "total score" structure, Chapters 1 to 3 of the book constitute the "Overview" part of the Data Transaction Law, focusing on the macro background and theoretical basis of data transactions, and Chapters 4 to 6 constitute the "Sub-Discussion" part of the Data Transaction Law, focusing on specific and individual transaction forms and contract structures.
3. A two-sided view of the legal toolbox: the EU model and Chinese rules
The EU model and Chinese rules constitute the dual perspectives of this book's research, which is also the characteristic of this book. The EU model is different from China's rules, but it looks at each other, which can be described as a common exploration of emerging propositions by jurists in different political, economic, cultural and social contexts under the statutory legal tradition. Finding a better way to legislate for data transactions is the essence of this book, and it is also the only way to construct a legal toolbox for data transactions.
(1) The EU model
The book begins with a comparative law perspective on data rules and standards in the European Union (EU model), addressing the following issues:
First, what are the policy motivations of the EU model? The EU model is the mainstream regulatory model in global data legislation, and the EU model has even taken the lead in the global data regulatory competition, taking the lead in becoming the mainstream paradigm for global cross-border data transmission. But it is worth asking, does the EU have a legal incentive to export? Does the EU have a policy incentive to "export" rules and standards globally from the start? Are EU legislators actively "embedded" concepts and rules with expansive functions? Is there a sufficient theoretical basis for the EU-modeled globalization? This is the focus of the first chapter.
Second, how does the EU structure a data flow system? The European Union's General Data Protection Regulation (GDPR) is not only a typical legislation for personal information protection, but also a basic system for cross-border data flow. The GDPR did not happen overnight, but served the dual goals of "protection of fundamental rights" and "harmonization of the internal market", and has undergone complex changes in legislative policy, judicial policy and legislative form. What kind of regime does the GDPR construct for cross-border data flows, and how does the Court of Justice of the European Union achieve global regulation of cross-border data flows? Which concepts and systems of the GDPR have reference value, and what are the value dilemmas and technical obstacles in itself? This is the question that Chapters 2 and 5 of this book are intended to explore.
Third, how the EU designs its rules for digital transactions. The focus of the EU's new legislation on the digital single market is the design of rules for digital transactions. Chapter III focuses on the form of legislation adopted by the EU, the legal rules created, and whether and how legal innovations have been made. The focus of Chapter 4 is how the EU member states represented by Germany adjust their traditional civil codes to transform EU law, and how we should evaluate the extraterritorial legislative models represented by the EU and Germany.
(2) Chinese rules
This study is based on the local scheme of data trading (China rules) and focuses on the following two points:
First, how to position the mainland's data supervision model. The Personal Information Protection Law, the Data Security Law, the Cybersecurity Law, and the Regulations on the Security Protection of Critical Information Infrastructure constitute the starting point of the mainland's data legislation. In the international context of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Digital Economy Partnership Agreement (DEPA), the mainland has long been caught in the torrent of global data regulatory competition. The mainland's data regulation shows a strong regulatory trend of "based on GDPR and beyond GDPR". However, will the implementation of strong regulation at this stage lead to the result of legal competition in which Chinese rules and standards replace the EU model? What are the risks of legal transplantation of the EU model? This is the focus of the first chapter of this book.
Second, where should the legislation on data transactions go? The "Opinions of the Central Committee of the Communist Party of China and the State Council on Building a Data Basic System to Better Play the Role of Data Elements" clearly elevates data to the level of production factors, and proposes that "data, as a new type of production factor, is the foundation of digitalization, networking, and intelligence". How does data transaction legislation define the relationship between the state and the market? This is a precursor to data transaction legislation. Specifically, what kind of basic transaction rules should be matched with the market-oriented circulation of data elements, how should it be connected with national supervision, and whether and how can contract law accommodate public law obligations and standards? In this regard, the Measures for the Standard Contract for the Export of Personal Information and its annex Standard Contract for the Export of Personal Information promulgated by the Cyberspace Administration of China constitute a new research perspective, and the standard contract clauses not only involve the contractual obligations of private entities, but also involve the protection of personal information subjects by the state, constituting a special regulatory tool for cross-border transfers, which is the beginning of Chapter 6 of this book.
4. Acknowledgments
Contract law is my research interest. The focus on data law began with contract law and ended with the basic theory of contract law.
As a leading scholar in the field of private European law, my doctoral supervisor, Professor Reiner Schulze, has extensive knowledge of EU consumer law, and he has opened up a new world of private data law in the EU. The Centre for European Private Law (CEP) at the University of Münster, Germany, founded by my supervisor, is an academic center for private law research on the European continent, and it is here that I received systematic academic training. From studying for a doctorate in law at the University of Münster in Germany in 2010 to conducting research on data law at Humboldt University of Berlin as a visiting scholar from 2018 to 2019, EU law and German law constitute an important dimension of my scientific research, but this is only a comparative law dimension, and all academic research will be based on the exploration and construction of Chinese rules and Chinese solutions.
This book has been studied by Prof. André Janssen, Prof. Chen Dachuang, Prof. Dai Mengyong, Prof. Li Yongjun, Prof. Liu Jia'an, Prof. Long Weiqiu, Prof. Lu Qing, Prof. Miao Yu, Prof. Nie Weifeng, Prof. Reiner Schulze, Prof. Sebastian Lohsse, Prof. Wang Tianfan, Dr. Wang Zerong, Prof. Xi Zhiguo, Prof. Yao Mingbin, Prof. Yi Jun, Prof. Yu Fei, Prof. Zhang Haiyang, Prof. Zhang Tong, Professor Zhuang Jiayuan and many other teachers and friends for their help and guidance, Li Xiangwei and Yan Shaoze, 2021 graduate students of the School of Civil and Commercial Law of China University of Political Science and Law, reviewed the whole book, and I would like to thank them for reviewing the whole book.
The publication of this book was supported by the special fund of the Fundamental Research Funds for the Central Universities, and the writing of this book was funded by the Academic Innovation Team Support Program for Young Teachers of China University of Political Science and Law. This research is also the result of the National Social Science Foundation of China project "Construction and Development of the Principle System of Data Circulation Contract Law" (Project No. 22BFX180) and the Qian Duansheng Outstanding Scholar Support Program of China University of Political Science and Law.
Hundreds of people compete for the stream, and those who strive are the first.
This book is only the first step in the legal research of data transactions, the academic research of data law, and the development of the digital economy.
Jin Jing
The article represents the author's personal views and positions only
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