— An Approach of Right Argumentation

 

LI Yi*

 

Abstract: Protecting personal credit information through constitutional rights is not only essemtial for individuals to defend against infringements on their personal credit information rights and interests by public power in the social credit system, but also a requirement for unified legislation on social credit to explore the basis for constitutional norms. In the era of the credit economy, personal credit information has become a vital resource for realizing personal autonomy.Along with the increase in the state’s supervision and control of personal credit, the realization of the autonomous value in the interests related to personal credit information has also set more obligations for the state. Therefore, interests related to personal credit information should be regarded as a constitutional right. Because of its significant economic interest and value, the right to personal credit information should be classified as a constitutional property right. As a constitutional property right, the right to personal credit information can not only help protect people’s economic interests, but also achieve the goal of safeguarding their personality interests.

 

Keywords: right to personal credit information · constitutional rights · social and economic rights · property rights

 

 

Currently, China is constructing a comprehensive social credit system led by the government, covering various fields such as government affairs, business, society, and justice. Undoubtedly, the establishment and operation of this system are based on the collection, storage, analysis, and utilization of credit information. According to the definition of credit information from Article 3 of the Measures for the Administration of the Credit Reporting Business, personal credit information refers to the basic information, lending information, and other related information that is collected in accordance with the law and used for identifying and judging the credit status of enterprises and individuals, as well as the analysis and evaluation information formed on the basis of the aforesaid information.¹ Typical “basic information” mainly includes personal biometric information (name, date of birth, gender, etc.), personal social attribute information [residence, education, occupation, work unit, and social insurance and provident fund payment information, marrital staus and family information, kinships and social relations, basic financial status, including income, assets and debts and negative credit information (such as overdue credit card or loan payments, dishonesty enforcement information, etc.).² Typical “lending information” mainly includes the query frequency information of citizens’ personal credit information, citizens’ borrowing information from banks and other financial institutions, and citizens’ repayment information from banks and other financial institutions;³ “other related information that is used for identifying and judging the credit status of individuals” mainly includes personal administrative penalty information, personal criminal record information;⁴ the “analysis and evaluation information formed on the basis of the aforesaid information” mainly includes personal asset-liability ratio information, judgment information about personal consumption habits, judgment information about whether the individual has multiple loans, judgment information about personal debt repayment ability, judgment information about personal career stability, judgment information about personal income stability, judgment information about personal living place stability, judgment information about personal social relationship activity, judgment information about personal social relationship quality (mainly based on the credit status of close social relations), and judgment information about personal honesty and other character traits.⁵

 

The above-mentioned credit information is almost ubiquitous in every aspect of citizens’ lives, providing a “panoramic display” of their family,marital, professional, economic, and social lives. The disclosure, inquiry, and use of this information are closely related to the continuity and integrity of individuals’ personal lives and social functions. From the perspective of private law, the vast majority of personal credit information is directly or indirectly related to personal economic interests, and some of it may even constitute “personal privacy”. This information determines whether individuals can participate in commercial activities, be involved in credit activities, purchase real estate and other immovable properties, purchase high-value movable properties such as vehicles, and even in a secondary sense, determines whether individuals can participate in investment and financial management activities to achieve wealth production, and ultimately determines whether individuals can obtain and maintain good social relations and personal reputation. From the perspective of public law, personal credit information determines whether individuals can apply for administrative permits, and decides whether individuals can obtain equal qualifications for employment (especially whether individuals can serve as national public servants or highly secure positions in state-owned enterprises, public institutions, etc.). Once this information is subject to illegal evaluation, illegal infringement, or becomes a means of carrying out reverse sanctions (such as the consumption restriction sanctions against dishonest persons), the lives of information subjects will be significantly or even fundamentally affected. The property interests, personal interests, and rights to protect these interests enjoyed by citizens based on this information collectively constitute the “personal credit information rights and interests” in this article.

 

Personal credit information rights and interests have not been legalized in China’s Constitution and laws. Even though they are highly important, they can only be indirectly protected by being converted to other legalized rights. Against the background of vigorously constructing a social credit system in China, it is urgent to legalize personal credit information rights and interests, or to constitutionalize or legalize the “right to personal credit information.” On the one hand, there is the “spillover effect” when it comes to national credit information collection. The state may collect the personal credit information of citizens on the largest possible scale based on administrative reasons other than credit evaluation, resulting in a large amount of negative personal information being mined and gathered. As a result, the credit score of the information subject is lowered, a large number of potential rights and interests based on good credit information are lost, and the structural “opportunity losses” will be scaled up and difficult to recover. For example, Article 14 of the Interim Measures for Credit Management of the Railway Transportation Industry recognizes information about smoking on high-speed trains or in non-smoking areas of other trains as credit information. However, such smoking behaviors do not necessarily mean that the actor has a low debt repayment ability. At most, it shows a lack of personal morality. If the individual is subject to dishonesty punishment because of this, he may not be able to carry out normal economic activities, and all his affairs that he desires to engage in may have to be suspended. On the other hand, there is an “external effect” of national credit information utilization. From past experience, we know that the state’s public power will take the most convenient and efficient methods to process and utilize credit information as much as possible. As a result, a large number of improper interventions and restrictions on personal credit information appear in the process, which causes unnecessary and serious damage to citizens’ credit information rights and interests. For example, the “blacklist” system is supposed to force individuals to fulfill their obligations through reputation control. However, once the “blacklist” is disclosed, all sectors of society and industries will be agitated, and all economic and social activities of the relevant personnel may be completely restricted, and they may even suffer discrimination from others. Therefore, if we want to realize the predetermination of the damage to the personal credit information rights and interests of citizens and to provide effective protection, it is necessary to establish the “right to personal credit information” at the constitutional or legal level, i.e., to give citizens the right to own and control their credit information, to use, keep and maintain their good credit in society, and to ensure the integrity of their personal life.

 

From the perspective of legislative methodology, when considering the legalization of a certain type of interest, we should first determine at the level of general law whether it can be absorbed by the existing legal rights, i.e., entering the positive legal system as a subordinate right under the existing legal rights. If not, we should consider whether it can be established as a new and independent legal right.⁶ However, whether these two approaches are viable or not, it ultimately does not prevent us from entering the constitutional argument of examining whether such type of interest has the essential attributes of basic rights to be incorporated into the positive legal system as a constitutional right.⁷ Specifically, for the issue of personal credit information rights and interests, the semantically related terms are “personal information rights and interests” and “credit rights and interests.” However, these two types of rights and interests are also theoretical or factual rights that have not been legalized.⁸ Nevertheless, the academic discussion on the legalization of these two types of rights and interests started earlier and has yielded many results.⁹ In terms of theories and viewpoints, there is a relatively mature understanding, more systematic interpretation, and relatively collective consensus. Especially with the introduction of the Personal Information Protection Law of the People’s Republic of China (hereinafter referred to as the “Personal Information Protection Law”), the legalization of “personal information rights” is on the way. Obviously, discussing the legalization of “personal credit information rights and interests” without considering “personal information rights and interests” and “credit rights and interests” is unscientific and unreasonable. In other words, developing an argument of whether “personal credit information rights and interests” are aligned with these two categories is equivalent to completing the first step of the aforementioned argument framework. If successful, it would mean that the legalization process can be implemented through these two categories. However, neither “personal information rights and interests” nor “credit rights and interests” possess the ability to introduce “personal credit information rights and interests” into the positive legal system.

 

On the one hand, there is a difference in the importance of personal credit information rights and interests, and personal information rights and interests. Personal credit information is undoubtedly a subordinate concept of general personal information, which certainly implies that there is an overlap between the objects of the rights and interests of personal credit information and those of personal information. However, it does not necessarily mean that personal credit information rights and interests are a subordinate concept of personal information rights and interests; nor does it imply that personal credit information rights and interests must be legalized as a subordinate right of personal information rights and interests. For example, Article 990 of the Book of Personality Rights of the Civil Code of the People’s Republic of China stipulates: “Personality rights are the rights enjoyed by persons of the civil law, such as the right to life, the right to corporeal integrity, the right to health, the right to name, the right to trade name, the right to likeness, the right to reputation, the right to honor, the right to privacy, and the like.” Among them, the “right to life” exists as a specific personality right parallel to the “right to health.” If viewed from the logical relationship of the object of the right, “health” is obviously a subordinate category of “life” because only when we “sustain life” can we have the conditions and qualifications to discuss “maintaining health.”¹⁰ “The life of the law does not lie in logic but in experience.”¹¹ With the development of the economy and society and the advancement of the “Healthy China” strategy,¹² the issue of “survival” is no longer the most pressing social concern. The demand for “health relief” and “health care” increases along with the insufficient supply and uneven distribution of health resources, creating a structural contradiction. As a result, the issue of physical and mental health in the “development” dimension becomes a core social interest. As a result, the right with it as the object (the right to health) not only has special importance in fact, but also shows sufficient value to support its independent existence in law. This anti-logical approach based on experience is precisely the practical quality that the law, as a normative product, should possess. Taking Article 990 of the Civil Code as an example again, although many studies have tried to clarify the difference between “personal privacy” and “personal information,” the focus of the discussion is almost exclusively on the normative implications of the two as legal rights (or after they are regarded as legal rights).¹³ From the perspective of the object of rights alone, personal privacy must necessarily be presented and exist in an informational state, and it is beyond doubt subordinate to the category of “personal information.” However, privacy information has a stronger relevance to personality interests and social psychological impact, so it is separately regulated, which can also serve as evidence for the viewpoint held in this article. Returning to personal credit information rights and interests, as mentioned earlier, they concern and even determine the sustainability of individual life and the integrity of social functions at the private subject level, and they are related to the construction and improvement of the “social credit system” at the public interest level. Both of these reasons can significantly help separate “personal credit information rights and interests” from “personal information rights and interests” in terms of importance and urgency. Therefore, it is not a good strategy to choose the approach of legalizing “personal credit information rights and interests” as subordinate rights of “personal information rights and interests.”

 

On the other hand, there is a difference in the nature of interests between personal credit information rights and interests, and credit rights and interests. In terms of nature, although the concept of personal credit rights has not yet been confirmed by legislation, according to Article 1024 of the Book of Personality Rights of the Civil Code on the right to reputation, “credit” is clearly defined as an important component of “reputation.” In other words, if credit is to become a right, whether it becomes a separate right or is established as a subordinate right of “reputation rights,” it must be a personality right; otherwise, it would break the underlying logical framework of the Civil Code, compromising its systematic and scientific nature. However, the previous enumeration of personal credit information rights and interests shows that although personal credit information rights and interests also include some personality interests, their core is mainly economic interests, such as opportunities to participate in fair market competition, expected benefits of obtaining loans, and qualifications for administrative permits. These all involve how citizens’ credit information should be used to ensure the normal development of their personal economic life. Therefore, personal credit information rights and interests are actually more likely a type of property right (which will be clarified in the following text), and they are fundamentally different in nature from credit rights and interests. Besides, we cannot introduce the former into the law with the help of the latter.

 

Based on the above discussion, we can easily find that there are only two feasible approaches to legalizing “personal credit information rights and interests”: either to include them as an independent right in the Civil Code or to justify that they are constitutional rights. These two propositions do not interfere with each other and require independent arguments. However, since the legalization of “personal credit information rights and interests” in civil law is a typical issue of civil legislative doctrine, which is beyond the knowledge of the writer, this article will focus on the latter approach. If the previous text theoretically clarified the possibility of justifying “personal credit information rights and interests” as constitutional rights, then the current trend of unified legislation of the social credit system¹⁴ provides a practical motivation for justifying “personal credit information rights and interests” as constitutional rights. From the perspective of function, constitutional rights should also be regarded as an objective value order coordinating public and private law.¹⁵ This means that the personal credit information rights at the constitutional rights level can not only provide a public law approach for the protection of personal credit information rights and interests in the social credit system, but also provide a constitutional basis and value support for the unified legislation of the future social credit system.

 

 

Whether personal credit information rights and interests are constitutional rights depends on the criteria for constituting a constitutional right. Constitutional rights are rights enumerated in the written Constitution, and their purpose is to declare the most important, core, and fundamental rights within the human rights spectrum through the Constitution.¹⁶ How do we determine and identify constitutional rights? This is the focus of this section of our discussion.

 

 

What kind of interest can become a constitutional right? This is the most common question faced by constitutional courts in various countries. The interpretation of the Constitution is at the core of the work of constitutional courts, and they can interpret the Constitution for various reasons, one of which is the necessity to confirm constitutional rights in practice.¹⁷ So, how do constitutional courts in various countries address this issue in practice? Do they show a common trend in the identification and determination of constitutional rights? The answers to these questions can undoubtedly provide insights for us to explore the standard of constitutional rights.

 

In his book The Global Model of Constitutional Rights, Kai M?ller examines the practices of constitutional courts around the world regarding constitutional rights and finds that a holistic model of constitutional rights is currently being formed and accepted by the majority of countries and regions. The essence and core of this model are the rights to personal autonomy.¹⁸ Traditional constitutional rights theory argues that first, constitutional rights only include some rights that are particularly important to individual interests; second, constitutional rights primarily impose negative obligations on the state; third, constitutional rights regulate the relationship between citizens and the state, not between private entities; fourth, constitutional rights have a very special normative effect and can only be overturned in highly exceptional circumstances.¹⁹ However, in the global model of constitutional rights, the above four aspects of the traditional constitutional theory have been dissolved to varying degrees. We believe that there are four new trends in current practices regarding constitutional rights: first, the expansion of rights, meaning that the scope of interests protected by constitutional rights is expanding; second, the emergence of positive obligations and social and economic rights, meaning that the obligations imposed on the state by constitutional rights are no longer solely negative; third, horizontal effect, meaning that constitutional rights not only regulate the relationship between citizens and the state, but can also apply to some extent between private entities; fourth, the balancing and proportionality principles, meaning that with the widespread use of the proportionality principle, constitutional rights are no longer absolute and can be subject to certain restrictions through the application of the proportionality principle in balancing different rights or private rights with public interests.²⁰ We employ a moral reconstructive method to examine the new trends in the practices of constitutional courts in various countries regarding constitutional rights, aiming to explore the moral value of constitutional rights on a global scale. In our view, the new trends in the practice of constitutional rights indicate that the purpose of constitutional rights is no longer to limit government power, but to promote individual control over their lives.²¹ If “personal autonomy” is considered the fundamental value of constitutional rights, then this value aligns well with current practices of constitutional rights. For example, the trend of the horizontal effect in constitutional rights, which protects citizens from infringements not only from the government but also from other private entities, demonstrates that constitutional rights indeed focus on personal autonomy and protect individuals’ rights to control their specific life domains. Another example is the trend in constitutional rights practice that the government should assume positive obligations, meaning that the government should prevent interference in citizens’ personal lives and create conditions to ensure citizens’ self-realization. In conclusion, if we start from the practices of constitutional courts in various countries regarding constitutional rights to explore the moral foundation behind constitutional rights, we can conclude that the ultimate goal of constitutional rights is to achieve personal autonomy. This is the theory of constitutional rights based on personal autonomy we propose.

 

However, this theory only reveals the common value of constitutional rights by examining the practice of constitutional courts in various countries concerning constitutional rights. Its purpose is to reconstruct the value foundation of constitutional rights from a moral perspective, rather than to construct a standard for identifying constitutional rights. This means that the theory cannot be used directly as a standard for determining whether a certain interest is a constitutional right. Obviously, it would be too hasty to regard a right as a constitutional right simply because it helps to realize the value of personal autonomy. This is because there are a considerable number of civil rights that also have the moral value of promoting the realization of personal autonomy.²² For example, civil law stipulates marriage and family rights, which are actually designed through the marriage system to coordinate state intervention and personal autonomy rights in marriage. For instance, individuals have the freedom to enter into contracts. With this right, individuals have the right and freedom to decide whether to enter into a contract, with whom to enter into a contract and what kind of contract to enter into. The freedom to enter into contracts grants individuals the ability to exclude others from interfering with contract-related issues within a certain scope, which is, of course, closely related to personal autonomy. Despite this, the constitutional rights proposed by Kai M?ller with his theory, which have the value of realizing personal autonomy, can still be used as a necessary condition for constituting constitutional rights. According to Kai M?ller’s observation, the practice of constitutional courts in various countries concerning constitutional rights shows the emphasis on the value of personal autonomy.²³ This means that only a right that helps to realize the value of personal autonomy may be recognized as a constitutional right by the constitutional court; if a right is not beneficial to the realization of personal autonomy, then it is not sufficient to become a constitutional right and receive protection at the constitutional level.

 

As previously mentioned, a considerable number of legal rights also contain the value of realizing personal autonomy. How can we distinguish between constitutional rights and legal rights that embody personal autonomy values? The key lies in the different ways they realize personal autonomy values. The realization of a legal right related to personal autonomy value, especially in civil law rights, mainly depends on the exercising of the rights of equal subjects. According to the principle of private law autonomy, state intervention is not required. In contrast, the realization of a constitutional right related to personal autonomy requires the state to assume certain obligations. This is because, from the functional perspective, constitutional rights can function as both subjective rights and objective law.²⁴ The subjective right function of constitutional rights lies in serving as the basis for citizens to demand state action or inaction. Correspondingly, the state has an obligation not to arbitrarily interfere with citizens exercising their constitutional rights or to fulfill its duty to promote the realization of constitutional rights.²⁵ The objective law function of constitutional rights is embodied by the fact that to treat constitutional rights as an objective value order, the state must promote the implementation of constitutional rights in all possible ways. Specifically, organizational guarantee functions, organizational and procedural guarantee functions, and protective obligation functions are all objective law functions of constitutional rights.²⁶ It can be seen that the realization of personal autonomy values at the constitutional level requires the state to fulfill both negative and positive obligations. On the negative side, the state should not restrict or interfere with citizens’ personal autonomy rights without constitutionally justified reasons. On the positive side, the state must create objective institutional and social conditions (especially material conditions) for the realization of citizens’ personal autonomy rights and protect these rights from violations by the state and private entities. Therefore, if a right or interest has the value of realizing personal autonomy, and the realization of personal autonomy under this right or interest generates corresponding obligations for the state, then this right or interest should be considered a constitutional right.

 

In summary, a right or interest must meet two conditions to become a constitutional right: first, it contains the value of individual autonomy;²⁷ second, it sets obligations for the state to ensure the realization of individual autonomy. With such a standard, more rights or interests can be included within the scope of constitutional right protection, which is entirely consistent with the trend of expanding interests protected by constitutional rights worldwide as proposed in Kai M?ller’s theory.

 

 

According to the aforementioned standard, personal credit information rights and interests becoming constitutional rights implies that first, personal credit information rights and interests contain the value of individual autonomy; second, the realization of the value of individual autonomy within personal credit information rights and interests requires the state to fulfill corresponding obligations. Therefore, we need to examine the content of these two aspects.

 

First, do personal credit information interests contain the value of individual autonomy? To begin with, we must clarify the concept of “individual autonomy.” Kai M?ller proposed a concept of protected interests in his theory to define individual autonomy. He believes that individual autonomy should be defined as a series of interests that should be protected, which are crucial for the realization of an individual’s autonomous life. These interests may be manifested as individual actions or resources related to the individual.²⁸ According to this concept, individual autonomy implies that a person can make independent choices or achieve control over their body or other resources in a certain domain.²⁹ Second, what kind of value of individual autonomy is contained in personal credit information interests? Since personal credit information is the basis and premise of personal credit information interests, the question can be simplified: Does personal credit information contain the value of individual autonomy? In the era of the credit economy, personal credit information is undoubtedly a vital resource for individuals, which is crucial for the realization of individual autonomy. Currently, personal credit is related to various aspects of an individual’s life, and the quality of what they can enjoy in terms of food, clothing, housing, expenditure, transportation, and other aspects is directly or indirectly linked to their credit scores. If personal credit information is beyond an individual’s control, they will struggle to freely arrange their life in society, make independent and correct decisions, or even participate in many social activities. Personal credit information has become an indispensable resource for individuals to live autonomously in society and is a prerequisite for ensuring the realization of individual autonomy. It can be said that the value of individual autonomy contained in personal credit information lies in the fact that individuals, based on their mastery and control of their credit information, can accurately predict and evaluate their social reputation, and thereby make reasonable arrangements and plans for their social life to achieve the purpose of individual autonomy.

 

Second, does the realization of the value of individual autonomy in personal credit information interests require the state to fulfill corresponding obligations? This question can be broken down into the following sub-questions. The first one is, can the realization of the value of individual autonomy in personal credit information interests be limited to equal subjects? Generally speaking, the realization of civil rights mainly relies on the exercise of claim rights between equal subjects. Essentially, civil law is about the basic rules of claim rights.³⁰ When the exercise of a civil right aimed at realizing individual autonomy is hindered, it usually means that the exercise of this right is subjected to coercion by others, thus obstructing individual self-determination. A typical manifestation is an emphasis on the autonomy of intention in the civil sphere.³¹ To achieve their individual autonomy, rights holders can exercise the right to stop infringement or request the revocation of the effectiveness of their actions when infringement has already occurred. The targets of these claim rights are subjects with equal legal status. For personal credit information interests, the core of individual autonomy lies in an individual’s control over their credit information. However, factors that hinder individuals from controlling their credit information are multifaceted, such as malicious dissemination of their credit information by others, improper use or sale of their credit information by credit reporting agencies, and more likely excessive collection or improper disclosure of their credit information by the state. In this case, the realization of the value of individual autonomy in personal credit information interests requires going beyond the scope of equal subjects and entering the realm of legal relationships between citizens and the state.³² The second sub-question is, what obligations should the state assume to promote the realization of the value of individual autonomy in personal credit information interests? As mentioned earlier, the realization of the value of individual autonomy at the constitutional level requires the state to fulfill both negative and positive obligations. Specifically, for personal credit information interests, realizing the value of individual autonomy means the following two aspects. On the one hand, the core of personal credit information interests lies in an individual’s control over their credit information to achieve individual autonomy, and the state must not arbitrarily interfere. On the other hand, during the development of the social credit system, the government has become the largest collector, keeper, and manager of credit information.³³ The state must create more conditions for individuals to better access and use credit information to ensure that individuals can fully utilize credit information resources to achieve autonomy in society. To achieve this goal, the state needs to improve its personal credit information protection system. At the same time, the state must protect the individual autonomy interests contained in personal credit information from infringement, whether the infringement comes from public authorities or individuals. For example, as the largest credit information manager, the government should actively fulfill its obligation to protect citizens’ personal credit information, so as to prevent the adverse impact of improper exposure of credit information on citizens’ autonomous lives; the state also has the obligation to improve relevant laws and regulations to ensure the safe and efficient circulation and use of such information. In summary, during the development of a government-led social credit system, the state needs to assume more obligations to ensure individuals’ control over their credit information so that the ultimate goal of individual autonomy can be achieved.

 

In conclusion, personal credit information interests fully meet the identification standard and can constitute constitutional rights. On the one hand, personal credit information interests are closely related to an individual’s autonomy in social life, especially economic life; on the other hand, with the enhancement of national supervision on personal credit, the realization of autonomy value in personal credit information interests sets more obligations for the state.

 

 

Since it can be proven that personal credit information interest is a constitutional right, we can call it the right to personal credit information. But which specific constitutional right should it be defined as? To answer this question, we need to clarify the types of constitutional rights in the text of the Constitution to determine the type of constitutional right to which the right to personal credit information should belong. Based on this, we can further clarify which specific constitutional right within that scope should encompass the protection of the right to personal credit information.

 

 

Classifying constitutional rights based on their content in China’s constitution is a widely favored method among Chinese constitutional scholars.³⁴ Since the 1980s, scholars have been constantly categorizing constitutional rights in China’s constitutional text. Some scholars have divided China’s constitutional rights into ten categories: equality rights, political rights and freedoms, freedom of religious belief, personal freedom, the right to criticize, suggest, appeal, accuse, report and obtain compensation, social and economic rights, cultural and educational rights and freedoms, women’s rights and freedoms, rights related to marriage, family, the elderly, women, and children, and the rights of overseas Chinese, returned overseas Chinese, and their dependents.³⁵ Some scholars have divided China’s constitutional rights into five categories: equality rights, political rights and freedoms, personal freedom and religious freedom, social and economic and cultural rights, and rights for specific individuals.³⁶ Others have divided China’s constitutional rights into six categories: equality rights, political rights and freedoms, personal freedom and religious freedom, social and economic and cultural and educational rights, supervisory rights and petition rights, and rights for specific subjects.³⁷ These classifications only differ in expression but not in essence. Based on these classifications, Professors Hu Jinguang and Han Dayuan, adhering to the principle of simplicity and conciseness while covering all constitutional rights, have summarized the constitutional rights listed in China’s Constitution into eight categories: equality rights, political rights, personal freedom, freedom of religious belief, cultural and educational rights, social and economic rights, supervisory rights and petition rights, and rights for specific subjects.³⁸ According to this classification standard, which category should the right to personal credit information fall into? This requires an analysis of the characteristics of the right to personal credit information.

 

Any right involves three basic elements: the right holder, the right object, and the content of the right. The right holder concerns who possesses the right, the right object concerns what the right is directed towards, and the content of the right provides how the holder exercises the right. Among these three elements, only the right object can reveal the basis for the establishment of a right.³⁹ Conceptually, a right represents the possibility granted by law to protect the specific interests of a specific subject based on their free will to act or not act in a certain way.⁴⁰ Therefore, the establishment of a right can be seen as the result of the right holder applying their free will to the right object.⁴¹ The free will of the right holder is abstract and needs the support of the right object to be manifested. Without the external element of the right object, the free will of the right holder cannot be realized; without free will, it is difficult to establish the right itself. Although the right object also falls into the category of external formal elements of the right, due to its function of representing the will of the right holder, it actually explains the basis on which the right is established. In this case, if we can understand the characteristics of the right object, we have actually understood the characteristics of the right itself.

 

For the right to personal credit information, the right object is the economic interests derived from credit information. As previously mentioned, in the era of the credit economy, we can almost assert that credit information can indeed generate infinite economic value for individuals. Even before human society entered the computer age, credit already had significant importance. Its most significant impact on individuals was interpersonal communication. In that era, the establishment of credit or the rating of credit was relatively slow, relying on the accumulated understanding among peers and requiring time to gradually spread. Credit thus existed as a moral evaluation standard for individuals, and its impact on personal economic interests might only be minimal. However, as we have entered the era of big data, the collection and storage of information has become more convenient and low-cost. Credit, with internet data as its carrier, became more easily discovered, evaluated, and ultimately disseminated. Under these circumstances, the scope of credit not only covers personal interpersonal communication, but also determines the type of job a person can find, and even whether that person can find a job; it determines the amount of a loan a person can get, and even whether that person can obtain a loan; it determines the kind of services a person can get in the services market; it determines whether a person will become a suspect under investigation by public security authorities and so on. All of these directly or indirectly affect the economic interests of a person, such as income, housing, and purchased goods, which are related to a person’s property. Even whether public security authorities include a person as a criminal suspect affects that person’s economic interests, whomay lose property as a result (since the person will have to spend time and effort to cooperate with public security authorities during the investigation) and who may lose the qualification to acquire wealth (if convicted, the person will be sentenced, and even if released after serving their sentence, their criminal record will greatly lower their credit score, making it difficult for them to find a good job or apply for satisfactory loans, etc.). To sum up, in the credit economy era, it has become a fact that personal credit information can generate infinite economic value and it is crucial to whether an individual can obtain and to what extent they can obtain an economic material foundation.

 

Since the object of the right to personal credit information is the economic value derived from personal credit information, we can interpret this right as a right for individuals to obtain economic benefits based on credit information or to have the possibility of obtaining economic benefits. Thus, we can take economic benefits as the core characteristic of this right. According to the classification standard of Professor Hu Jinguang and Professor Han Dayuan, among the eight types of rights listed in China’s Constitution, only social and economic rights contain economic value. Social and economic rights in the Constitution refer to the rights of citizens to enjoy economic benefits in accordance with the provisions of the Constitution.⁴² Therefore, the right to personal credit information should be included in the category of constitutional social and economic rights.

 

 

In China’s Constitution, social rights with economic value include property rights, the rights to work, rest, and social security. Since there are so many rights involving economic value in the Constitution, which specific social and economic right does the right to personal credit information belong to? We can find out which kind of constitutional right is the right to personal credit information by examining the social and economic rights involving economic value in China’s Constitution.

 

In the Constitution, the right to work has economic value because citizens have the right to obtain remuneration through labor.⁴³ The economic value of the right to work lies in the economic income citizens have already obtained or may obtain based on labor in the future. As a condition for the realization of the right to work, the right to rest in the Constitution refers to the right of workers to rest and recuperate.⁴⁴ The right to rest in the Constitution does not have direct economic value, and its economic value is still reflected in the right to work. The right to social security in the Constitution refers to the claim right of individuals in a protected status due to social risks to maintain a dignified life by requesting payments from the state.⁴⁵ In China’s Constitution, the right to social security is mainly manifested as the citizens’ right to the state’s material assistance.⁴⁶ Therefore, the economic value of the right to social security mainly lies in the material assistance citizens have obtained or may obtain from the state. The property rights in the Constitution protect citizens’ right to acquire property through labor or other legal means and enjoy the rights to possess, use, and dispose of the property.⁴⁷ The economic value of property rights in the Constitution is reflected in the object protected by the constitutional property rights — the property itself. In the context of the Constitution, property is closely related to the dignity of people, and it is the material basis for people’s survival and development. It is difficult to clearly define a property or determine its scope. The concept of property has universality and can encompass almost all rights or interests related to economic value. In fact, the economic value contained in citizens’ rights to work, rest, and material assistance can ultimately be protected as property by constitutional property rights. Therefore, property rights can be regarded as general social and economic rights in the Constitution, while the rights to work, rest, and social security can be regarded as specific social and economic rights.⁴⁸

 

According to the current enumeration of specific social and economic rights in China’s Constitution, personal credit information rights cannot be included in the protection scope of any of these specific social and economic rights. The previous discussion has shown that specific social and economic rights are mainly the rights to work, rest, and social security, which have limitations in terms of protecting the economic value of interests. First, the economic value of interests is not the primary object to be protected by these rights; they only indirectly play a role in protecting the economic value of interests. Second, these rights can protect the economic value of interests in only certain aspects, but not all aspects of citizens’ lives that may be involved. In the right to personal credit information, the economically valuable personal credit information and all possibilities for potential economic gains or losses related to it cannot be included in the protection scope of the aforementioned specific social and economic rights. Only the scope of economic interests protected by property rights in the Constitution is universal and extensive and can include all rights or interests related to the economic value of interests. This means that all possibilities for the potential increase and decrease of economic benefits derived from personal credit information can be included in the protection scope of constitutional property rights. Therefore, the right to personal credit information should be a property right in the Constitution and we can call it the personal credit information property right.

 

 

The previous discussion has clarified the property right nature of the right to personal credit information, but this does not mean that in the context of the Constitution, the right to personal credit information as a property right only protects the economic value of the right to personal credit information. The reason is that the regulatory objective of property rights in the constitutional context is not merely to protect citizens’ wealth in the first place, but to emphasize providing a solid material basis for individual autonomy and self-realization.⁴⁹ In other words, as a basic right, the property right is “basic” because it focuses fully on “people” in society, taking human development and self-realization, rather than the accumulation and maximization of wealth, as the ultimate goal.⁵⁰ Looking at foreign experience, we can easily find that the German Federal Constitutional Court also closely links property rights with personality, believing that the understanding of property rights under Article 14 of the Basic Law must be placed in the context of the subject’s personality associated with property rights.⁵¹ Interpreting the normative connotation of constitutional property rights as the material basis for individual autonomy is consistent with the previous argument for the standard of constitutional rights. This is precisely why we advocate the protection of economic and personal interests related to credit information through the right to personal credit information as a constitutional property right. However, we should not fall into another extreme, that is, to believe that the right to personal credit information as a constitutional right should be included in the category of personality rights. This may be a more intuitive judgment, but it cannot pass the strict doctrinal compliance argument in the previous text and should be treated and handled more cautiously. Therefore, property rights as basic rights should be understood from two aspects: first, property rights protect rights and interests with economic value, including public law rights and private law rights; second, the protection of rights and interests with economic value by property rights ultimately aims to promote individual autonomy and self-realization in society.

 

Following the normative connotation of property rights in the context of the Constitution, we should understand the right to personal credit information as a property right in the following ways: first, the right to personal credit information protects the existing or potential economic interests of individuals based on credit information; second, the ultimate purpose of this right is to ensure that citizens can still live freely and autonomously within the social credit system, safeguarding the realization of personal self-development. The implementation of this value of personal autonomy in the right to personal credit information requires the realization of the control function inherent in a property right. Specifically, after granting individuals the right to control their credit information, they can control their own personal freedom and development. Negatively speaking, this control right can prevent the state from arbitrarily expanding or restricting the scope of credit information. In determining the scope of credit information collection and the rules and methods of disclosure, we must fully consider the possibility of individuals freely choosing, equally participating, and reasonably conducting their lives according to reasonable expectations within the credit society. Any maximization of credit information collection and the simplest and crudest credit information disclosure at the expense of personal autonomy and personality should be eliminated. Positively speaking, this control right requires the state to continuously improve and refine the social credit system. In a credit society, the realization of personal autonomy and self-development actually depends on the information about others’ credit status in the state’s social credit system, on the basis of which individuals can make reasonable arrangements, rational decisions, and appropriate choices for their own lives. In other words, based on the prevention of unreasonable interference with personal credit information and the reasonable demands for others’ personal credit information, the right to personal credit information, in fact, puts forward the requirement for the state to build a perfect and benign social credit system. However, the control function of this right as a property right in the constitutional context does not negate the public nature of personal credit information. The property right itself is not absolute, and the control function of the property right still demonstrates a social nature.⁵² The social obligations of the property right are unshakable. Individuals’ control over their credit information still needs to be based on the establishment and operation of the social credit system, which means that individuals cannot absolutely claim autonomy and self-development as a requirement and refuse to provide credit information within a reasonable scope.

 

 

As a fundamental norm, China’s Constitution should play a vital role in guiding values and providing an approach to the legislative process of the social credit system. Clarifying the property rights attribute of personal credit information rights and interests at the constitutional level is of crucial significance and value for determining the protection rules of personal credit information rights and interests at the legislative level. It determines what kind of rule design social credit laws and regulations should adopt to achieve the purpose of protecting credit information rights and interests.⁵³ Regarding the normative connotation of property rights in the constitutional context, the right to personal credit information as a property right can achieve the purpose of protecting both economic and personal interests related to personal credit information. A constitutional property right is not merely a right that protects the economic value of the property, but also a right that concerns the personal interests value implied behind the economic value of the property. Therefore, establishing the personal credit information property right at the constitutional level and realizing the dual protection of economic interests and personal interests in personal credit information rights can, to a certain extent, help avoid disputes over the property rights attributes and personality rights attributes of personal credit information rights and interests. At the same time, it also provides basic value guidance for the design of property rules that protect both economic and personal interests in future legislation on the protection of personal credit information rights and interests.

 

(Translated by SU Yilong)

 

* LI Yi ( 李艺 ), Postdoctoral Researcher, Peking University School of Transnational Law.

 

1. The Measures for the Administration of the Credit Reporting Business were issued by the People’s Bank of China and implemented on January 1, 2022. Article 3 of the Measures defines credit information as follows: “For the purposes of these Measures, ‘credit information’ means the basic information, lending information, and other related information that is collected in accordance with the law and used for identifying and judging the credit status of enterprises and individuals, as well as the analysis and evaluation information formed on the basis of the aforesaid information.”

 

2. Chen Yongyang, Personal Credit Management: Theory, Practice, and Cases (Chongqing: Chongqing University Press, 2016), 109-113. 

 

3. Ibid., 9-11.

 

4. Xiao Weizhi, “Four Definitions of ‘Social Credit’”, Journal of Capital Normal University (Social Science Edition) 4 (2021): 54-55.

 

5. Chen Yongyang, Personal Credit Management: Theory, Practice, and Cases (Chongqing: Chongqing University Press, 2016), 122-127.

 

6. Li Guangde, “Positive Typologies of the Right to Health Norms,” Human Rights 1 (2021): 45-50.

 

7. Such an argument framework is based on the basic theoretical presupposition of the relationship between “constitutional rights” and “legal rights.” There is no logical relationship between these two in the sense of general and specific, whole and part, parent and subsidiary, including and being included, nor is there a hierarchical relationship in the structure of the legal system. Therefore, some “constitutional rights” correspond to “legal rights” with the same name, such as constitutional property rights and civil property rights, constitutional personality rights, and civil personality rights. However, more “constitutional rights” are not suitable for regulation by general laws due to their importance, and thus there are no corresponding “legal rights” with the same name. See Wu Guobang, “Can ‘Logic of Norms’ be Irreplaceable? — Foundational Reflection on Kelsen’s Pure Theory of Law,” Renmin University Law Review 1 (2009): 97-102.

 

8. In terms of personal information rights and interests, neither the Civil Code nor the Personal Information Protection Law explicitly defines the concept of “personal information rights.” The former uses the term “personal information,” while the latter uses the term “personal information rights and interests.” As for credit rights, the first Civil Code of the People’s Republic of China (Draft) on December 23, 2002, specifically stipulated credit rights in the Book of Personality Rights. But the current Civil Code does not continue this provision. Instead, it merely defines “credit” as a type of reputation in the Book of Personality Rights.

 

9. For relevant papers on the establishment of personal information rights, see Fu Xinhua, “On the Justification of the Right to Personal Information,” Law and Social Development 5 (2021): 123-140. For relevant papers on the establishment of personal credit rights, see Wu Handong, “On Credit Rights”, Law Science 1 (2001): 41-48; Li Xintian and Zhu Qiongjuan, “On ‘Personal Credit Rights’ and the Construction of China’s Personal Credit Legal System,” China Legal Science 5 (2003): 96-104.

 

10. If we define “sustaining life” as A and “maintaining health” as B, then from the empirical fact that only “sustaining life” ensures the qualifications and conditions to discuss “maintaining health,” we know that A is a necessary condition for B. Translating this into logical language, B substantially implies A, which can be symbolized as B→A. This formula is equivalent to B?A, which means that B is a subordinate category of A.

 

11. Holmes, The Common Law, translated by Ran Hao and Yao Zhongqiu (Beijing: China University of Political Science and Law Press, 2006), 1.

 

12. Shen Shuguang and Zeng Wangfeng, “The Concept, Framework, and Path of Healthy China Construction,” Journal of Sun Yat-Sen University (Social Science Edition) 1 (2020): 168-170.

 

13. For example, Zhang Jianwen and Shi Bin, “The Relationship between the Right of Privacy and Right of Interest of Personal Information under the Perspective of Personal Information Protection Law: with a Focus on the Legal Application of Private Information,” Journal of Soochow University (Philosophy & Social Science Edition) 2 (2022): 46-57; Li Qian, “On the Relationship between the Right to Privacy and Personal Information Right and the Framework of Protection: Interpretation of Chapter VI in Jurisprudence Perspective, Book Four, China Civil Code,” Journal of Xi’an Jiaotong University (Social Sciences) 6 (2021): 159-168.

 

14. Wu Jingmei, “Thoughts on Credit Legislation: Three Major Credit Laws in Future China,” Law Science Magazine 3 (2022): 85.

 

15. Zhang Xiang, “The Dual Character of Fundamental Rights,” CASS Journal of Law 3 (2005): 25.

 

16. Qin Xiaojian, “Why Does the Constitution Enumerate Rights? — The Normative Connotation of Rights in the Chinese Constitution,” Law and Social Development 1 (2014): 92.

 

17. Mitchell N. Berman, Constitutional Decision Rules, 90 Virginia Law Review 1 (2004): 13.

 

18. Kai M?ller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012), 44.

 

19. Ibid., 2.

 

20. Kai M?ller, The Global Model of Constitutional Rights (Oxford: Oxford University press, 2012), 2-15.

 

21. Kai M?ller, “Two Conceptions of Positive Liberty: Towards an Autonomy — Based Theory of Constitutional Rights,” 29 Oxford Journal of Legal Studies 4 (2009): 758.

 

22. Kang Na, “Marriage under Relations Contract: An Reflection and Breakthrough of Traditional Marriage Contract,” Science of Law (Journal of Northwest University of Political Science and Law) 5 (2009): 104.

 

23. For example, the Constitutional Court of Belgium exists as a defender of community autonomy. See Patrick Peeters and Jens Mosseimans, “The Constitutional Court of Belgium: Safeguard of the Autonomy of the Communities and Regions,” Courts in Federal Countries; Federalists or Unitarists? (Toronto: University of Toronto Press, 2017), 70-80. Similarly, the Constitutional Court of South Africa also demonstrates its attention to the value of personal autonomy. See Nico Steytler, “The Constitutional Court of South Africa: Reinforcing an Hourglass System of Multi-Level Government,” Courts in Federal Countries: Federalists or Unitarists? (Toronto: University of Toronto Press, 2017), 328.

 

24. Zhang Xiang, “Systematic Thinking of Basic Rights,” Tsinghua University Law Journal 4 (2012): 24. Regarding the functions of constitutional rights, many domestic scholars have conducted discussions. For example, Fan Jinxue believes that although citizens’ basic rights have third-party effects, the primary function of basic rights is still resisting and defending against the government, see Fan Jinxue, “On the Functions and Realization of Citizens’ Basic Rights,” Shandong Social Sciences 4 (2008): 27-32; Chen Zheng points out that basic rights not only have defensive functions, institutional guarantee functions, payment obligation functions, and sharing rights functions, but also have state protection obligation functions, see Chen Zheng, “The State Protection Obligation Function of Basic Rights,” Chinese Journal of Law 1 (2008): 51-52. By comparing different scholars’ theories on the functions of basic rights, it can be found that Zhang Xiang has achieved a systematic arrangement of the functions of basic rights by applying systematic thinking of basic rights. The two major functional systems of basic rights proposed by Zhang, namely subjective rights functions and objective law functions, can basically encompass all the functions of basic rights. The theory of basic rights functional systems proposed by Zhang has far-reaching influence in domestic academic circles. Some scholars have provided supplementary explanations on the social basis of this theory, e.g., Li Zhongxia, “The Social Function of The Fundamental Rights,” The Jurists 5 (2014): 15-33; other scholars have used this theory as the basis for solving other theoretical or practical problems, such as Zheng Chunyan used it as a theoretical tool for explaining the legal basis of administrative law in China, see Zheng Chunyan, “Functional System of Fundamental Rights and Approach to the Rule of Administrative Law,” Chinese Journal of Law 5 (2015): 28-38, and Liu Pu used it as a powerful tool to improve China’s education guarantee mechanism for disabled people, see Liu Pu, “Perfecting the Legal System of Disabled Persons Education in China with the Theory of Basic Rights and Function,” Research in Educational Development 23 (2018): 51-58, and so on.

 

25. Zhang Xiang, “Systematic Thinking of Basic Rights,” Tsinghua University Law Journal 4 (2012): 24.

 

26. Ibid.

 

27. In Germany, the Federal Constitutional Court has always regarded the value of individual autonomy as an important purpose of constitutional rights protection. The core method of the court in interpreting constitutional rights is the purposive interpretation, taking the promotion of individual autonomy as the fundamental value of constitutional rights. In the 1968 Hamburg flood control case, the Federal Constitutional Court used the purposive interpretation to define the function of property rights in the constitution: “To safeguard the fundamental constitutional rights of property, we must place them in the context of protecting individual freedom. Within the general system of constitutional rights, the function of property rights is to maintain the economic freedom of the rights holder, thereby achieving self-rule.” (BVerfCE 24) In the 1983 population census case, the Federal Constitutional Court, based on the human dignity clause of the Basic Law, pointed out that the state must respect the “self-determination and self-development of individuals based on rational guidance” (BVerfCE 6) and thus established the right to informational self-determination. From this, it can be seen that the fundamental value of constitutional rights based on individual autonomy has been confirmed in practice.

 

28. Kai M?ller. “Two Conceptions of Positive Liberty: Towards an Autonomy-Based Theory of Constitutional Rights,” 29 Oxford Journal of Legal Studies 4 (2009): 771.

 

29. Liu Shuangyang, “On the Judicial Boundary of the Criminal Law Protection of the Right to Informational Self-determination,” Human Rights 5 (2021): 148-150.

 

30. Hu Jianming, “Request Right Basic Rules and Codification Legislation,” ECUPL Journal 6 (2016): 38.

 

31. Hou Jiaru, “A New Interpretation of the Fundamental Principles of Civil Law: Based upon the Idea of Personal Autonomy,” Global Law Review 4 (2013): 81.

 

32. Dai Jitao, “On the Right to the Protection of Personal Data as a Constitutional Right,” Human Rights 5 (2021): 111-113.

 

33. Zhang Zheng and Zhang Lili, “Construction of China’s Public Credit System: Characteristics, Problems, and Countermeasures,” Expanding Horizons 2 (2017): 62-63.

 

34. Hu Jinguang, Principles and Case Studies of Constitutional Law (Beijing: China Renmin University Press, 2009), 237.

 

35. Wu Jialin, Constitutional Law (Beijing: Qunzhong Publishing House, 1983), 34-38.

 

36. Xu Chongde, Chinese Constitution (Beijing: China Renmin University Press, 1996), 399.

 

37. Wei Dingren, Constitutional Law (Beijing: Peking University Press, 1999), 172-175.

 

38. Hu Jinuang and Han Dayuan, Chinese Constitution (Beijing: Law Press, 2004), 182.

 

39. Fang Xinjun, “Object of Right: Concept and its Levels,” Chinese Journal of Law 2 (2010): 38.

 

40. Ibid., 37.

 

41. Cao Xiangjian, “Object of Rights: Concept Constitution and Theory Unification,” Legal Forum 5 (2017): 30.

 

42. Hu Jinuang and Han Dayuan, Chinese Constitution (Beijing: Law Press, 2004), 260.

 

43. Qin Guorong, “The Nature and Meaning of the Right to Work,” Global Law Review 1 (2010): 59-63.

 

44. Hu Jinuang and Han Dayuan, Chinese Constitution (Beijing: Law Press, 2004), 271.

 

45. Ibid.

 

46. For example, Article 44 of the Constitution stipulates: “The livelihood of retirees shall be ensured by the state and society.” Paragraph 1 of Article 45 stipulates: “Citizens of the People’s Republic of China shall have the right to material assistance from the state and society when they are aged, ill, or have lost the capacity to work.” Paragraph 2 of Article 45 stipulates: “The state and society shall guarantee the livelihood of disabled 

military personnel, provide pensions to the families of martyrs, and give preferential treatment to the family members of military personnel.” Paragraph 3 of Article 45 stipulates: “The state and society shall assist arrangements for the work, livelihood, and education of citizens who are blind, deaf, mute or have other disabilities.”

 

47. Hu Jinguang and Han Dayuan, Chinese Constitution (Beijing: Law Press, 4th edition, 2018), 261.

 

48. Hart has discussed the concepts of special rights and general rights in detail. Special rights, as opposed to general rights, have the following characteristics: First, they originate from personal interactions or special relationships between individuals, rather than from the acts that one has the right to ask others to perform; second, those who possess special rights are limited to the parties involved in the interaction or special relationship, which means that both the right holders and the duty bearers are specific. See Hart, “Are There Any Natural Rights?” 64 Philosophical Review 2 (1955): 183-188. However, the special rights and general rights we use in this article are not the concepts of special rights and general rights in the sense of Hart, but merely the concepts of special and general rights divided based on whether the economic value of the rights they contain is universal.

 

49. Li Yi, “Why Should Personal Credit Information be Protected by the Constitution? — An Approach of Institutional Argumentation,” CUPL Journal of Postgraduate 2 (2020): 554.

 

50. Gregory S. Alexander, “Is Property Right a Fundamental Right? — A Comparison with Germany,” translated by Zheng Lei, Public Law Research 00 (2007): 424-425.

 

51. BVerfGE 24, 289.

 

52. Zhang Xiang, “On the Social Obligations of Property Rights,” Social Sciences in China 9 (2012): 103-106.

 

53. Zhang Jing, “The Legislative Model Choice of Personal Information Protection,” Law-Based Society 3 (2019): 80-83.