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The Legal Attributes of Electronic Data and the Positioning of Data in Civil Law

Social Sciences in China, 2019

Vol. 40, No. 1, 2019

 

The Legal Attributes of Electronic Data and the Positioning of Data in Civil Law

(Abstract)

 

Mei Xiaying

 

There is little fundamental research in civil law theory on the relationship between computer data and goods (objects) and property under civil law. Existing judgments on online civil disputes and current theoretical research have tended to process electronic data as an object or property in isolation. But electronic data is not specific and independent; it does not fall under intangibles, nor can it be classified as an object with civil rights content. It has no independent economic value, and trading in data is constrained by its information content. Moreover, the realization of its value is dependent for protection on data security and self-control, so it cannot easily be regarded as property. Since electronic data is not an object, contracts for big data transactions can readily be defined as data service contracts, but given the uncertainty of the entity in question, the problem of externalities and the lack of a monopoly, it is not easy to realize data rights. Electronic data has the essential character of instrumental neutrality, and there are limits to the law’s imposition on it of regulatory functions. Online civil disputes can be divided into the instrumental and the virtual, used respectively as general tort remedy and as tort remedy for infringement of laws protecting others.

 

Keywords: data, legal attributes, property, object