中圖分類號： D92
文獻標識碼： A
DOI： 10.19358/j.issn.2097-1788.2023.01.005
引用格式： 張瀠之. 比例原則視域下個人數據跨境流動規制中的利益權衡[J].網絡安全與數據治理，2023，42(1)：37-44，53.

Trade-offs in the regulation of cross-border flows of personal data from the perspective of proportionality principle

Abstract： Although the Regional Comprehensive Economic Partnership(RCEP) has filled the “loophole” of values between the two major patterns dominated by the United States and Europe, the global regulation of cross-border flows of personal data has not yet been established. It marks the awakening of developing countries when the interest of national security was elevated to the equal weight with personal data rights and economic interest. However, the failure of Privacy Shield indicates that there is still an intense contradiction between “strict”and “relaxed” regulations, which stems from different considerations of aforementioned three interests by different countries. However, this contradiction is not irreparable. The principle of proportionality was renewed by cost-benefit analysis with a formulaic method, under the guidance of which it is possible to balance these three interests and explore the ideal path of global regulation, namely “balance point”, to reverse the divided situation in global regulation. Although the domestic legislation in China preferred the position of “data localization” due to the difficulty of constructing global regulations, China should improve the domestic legislative framework under the goal of“balance point”, and meanwhile await bright future of pluralistic co-governance.

Key words : cross-border flows of personal data；proportionality principle；cost-benefit analysis；data localization；Regional Comprehensive Economic Partnership