个人信息侵权惩罚性赔偿的法理基础与制度构造OACHSSCD

Based on the dual attributes of private and public interests of personal information in the context of digital society,the new features of personal information infringement,the systematic demand for extended protection of personal information rights and interests,as well as the systematic interest of punitive damages,the systematic system of personal information protection should be perfected through the introduction of the system of punitive damages for personal information infringement.At the theoretical level,although the existing research in the academic circle shows that the construction of the system of punitive damages for personal information infringement is theoretically necessary and justified for the improvement of the system of personal information protection,the relevant theoretical construction is either in a state of absence,or there is room for further improvement.At the level of legal norms,although the Civil Code and the Personal Information Protection Law have necessary norms on the protection of personal information,the legalism of the application of the punitive compensation system and the lack of norms on the punitive damages for personal information infringement have made it difficult to provide the information subject with a comprehensive system of protection in judicial practice.In the face of the defects in theory and normative patterns of punitive damages for personal information infringement,the functionalism value orientation of punitive damages and the existing system should be combined to choose the construction path,and thus provide theoretical support for the introduction of punitive damages for personal information infringement.Based on the homogeneity and heterogeneity between the punitive damages system and the damages system,in the subjective elements of punitive damages for personal information infringement,emphasizing the degree of subjective malice of the tortfeasor,intent and gross negligence within the spectrum of infringement fault should be selected as the subjective elements.For objective damage,in addition to the serious property or moral damage caused to the subject of information by the infringement of personal information,in the case of forms of damage such as risk-based damage and mass micro-aggression,the legal obligations of the processor of personal information should be the criterion for determining the consequences of damage.In this context,risk-based damage and mass micro-aggression are also in line with the evaluation criteria of the seriousness of the infringement and the consequences of the damage.Therefore,the serious consequences of the infringement of personal information and the seriousness of the infringement of personal information should be included in the objective elements of punitive damages for personal information infringement.For the subject of claim,based on the existing punitive damages system,norms and legal practice,personal information subject,as well as personal information public interest litigation subject should be the subject of punitive damages claim,to expand the relief channels and make up for the litigation capacity deficiencies of personal information subject.