Social Sciences in China (Chinese Edition)

No. 7, 2022

From Control to Utilization: The Transformation of the Data Governance Model of Criminal Law in China

(Abstract)

Yu Gaizhi

Data security and data sharing are fundamental goals of data governance. Influenced by the notion of data empowerment, current criminal law adopts a control model that focuses on the prohibition of “access,” “leakage” or “theft” of data and thus to prevent abuse in advance. However, the control model ignores the public good nature of data and fails to protect the legal interests of data in a comprehensive and effective manner, resulting neither in effective data security nor data sharing. The model of exploitation aimed at controlling abusive behaviour is a realistic direction for the adaptation of the criminal law data governance model. The realization of this mode can be based on the following approach: setting up a special article in the general provisions of the criminal law to guide the interpretation of the legal interests of data in the sub-rules; limiting the control model of legislation to give full play to the independent value of data; adding crimes of abusing algorithms and providing illegal algorithm services to make up for the shortage of current criminal law norms; actively developing the reasons for preventing data-related crimes and avoiding the inhibition of data sharing goals due to the excessive intervention of criminal law.