Prepaid mobile phone, not to and not a simple answer, the problem is that laws have been prepared for the introduction of prepaid mobile phone ready yet? This article attempts to communication (mobile phone) real name meaning, how to realize the right to freedom of communication security, how to implement privacy rights security, communication (mobile phone) legal purpose and legal basis of the real-name system and communication (mobile phone) real-name system, legislation on the implementation of communication (mobile phone) Exposition and discussion of the real-name system, the legal issues.
Real-name freedom privacy protection permits telecommunications network codes, purpose and legal basis of the legal availability of resources; the legislative
Introduction
To computers, communications, biotechnology thrive as the main symbol of the new technological revolution brought great changes to the human production, life, countries all over the world, including China, have or are benefiting. Of course, high-tech also has its negative effects, around a new technological revolution brought about by a series of global issues, sustainability in the world, strong controversy, and that this controversy will continue. In fact, all debates focus around high and new technology to the well-being of human society at the same time, how to effectively avoid the negative impact on human society. Prepaid mobile phone and network is up or real-name system implemented in China and how to implement the dispute amid growing (the argument in addition to promoting the development of computer communication technology in our country, also will promote perfection of relevant laws and regulations in the field; in fact, both for maximizing the economic benefits of high new technology, how to achieve the maximum social and public interests is in itself a problem worthy of observation and exploration). This article from the communication (mobile phone) meaning real-name system, with the existing legal relations, developing and perfecting the laws and regulations, the basic legislation for the protection of the rights and limitations discussed in areas such as communication (mobile phone) real-name system, legal issues.
, Communication (mobile) real name meaning
With the rapid development of communications and continual improvement in the living standards of citizens, legal protection and regulation of the communications services increasingly a cause for general concern. This year, should be subject to real-name system and how to implement a prepaid mobile phone and network is the focus of this kind of problem. Prepaid mobile phone, what looks like a simple question, but the problem hidden behind a series of legal problems, and that these legal issues involving without exception public protection and restriction of constitutional basic rights in China. With prepaid mobile phone as an example, in the context of society as a realization of China’s public policy design and implementation of public participation, in itself, is an improvement of the social democratic development. Of course, this is also the social legal consciousness of the public is increasingly rising, inevitable result of the continued development and improvement of the legal protection system. If we are able to take advantage of prepaid mobile phone users to, further promoting the level of constitutional protection of fundamental rights of citizens in China, promoting public participation in the enthusiasm of our citizens and democratic legal consciousness, promote the improvement and harmonization of existing legal system, and promote transformation of current legislation and legislative methods, improve the quality of legislation, would become a milestone of China’s legal construction.
At present, China’s mobile phone users, only China Mobile Communications Corporation (referred to as China Mobile, the same below) GSM mobile phone user imposed a real-name registration system, China Mobile to other mobile phones and other mobile phone users did not use mobile phones real-name registration system. Communication information Xu Yu, Director of the Institute of the Ministry of information industry, Telecommunication Institute in 2006, world network of telecommunications a few days ago the Theil in an exclusive interview with: “so-called prepaid mobile phone refers to when the operators of mobile communication services in the mobile phone network formalities should be registered users ‘ information. User as an individual, should be contained valid identification of the registered user’s name and number and other personal information. User basis, subscriber names and address and contacts [①]. “This is the specific meaning of Telecom prepaid mobile phone for the first time in the field. However this expression can accurately express prepaid mobile phone’s exact meaning or whether can be considered law relating to prepaid mobile phone concept, still merits close examination. Based on this, the author at present in China Mobile users access to public telecommunications networks using mobile communications services in the course of a series of legal relationship analysis involved are as follows.
(A) prior to mobile phone users using public communication services main legal relationship analysis
Headache to purchase after buying mobile products and mobile number two steps, signed a mobile network agreement with Telecom operators can use mobile.
1, mobile phone users to buy phones into the network license
Mobile phone product is in mobile communication terminal device. Under existing State Council developed of << People's Republic of China Telecom Ordinance >> (short << Telecom Ordinance >>, with) fourth chapter second section “Telecom device into network” 54th section on “national on Telecom terminal equipment, and radio communications device and involved network between interconnected of device implemented into network license system sth sth” of provisions and on January 10, 2005 up implementation of information industry Department is responsible for implementation of administrative license project and conditions, and program , And period provisions (first batch) under (short << Ministry administrative license provisions >>, with) in the on Telecom device into network license (containing trial) approval of “implemented into network license system of Telecom device should get information industry Department issued of into network license (containing into network trial approval, with); is not get into network license of, shall not access public telecom network using and in domestic sales” of provisions, Networking license are including mobile telecommunications terminal access, national public telecommunication networks use and essential in selling in mainland China approval for administrative license. According to << the Ministry of administrative licensing requirements >> mobile phone into the network license conditions, procedures for administrative examination and approval of the applications provided the administrative examination and approval of the legal regulation of receptor for corporate, for example, the applicant shall submit a “sth (B) the business license of Enterprise representative sth (C) information on the applicant. Applicant profiles, production conditions, instrument equipped with measures, quality assurance system and after-sales service, and more. State regulations provide repairs, replacement and refunding of the product, should also be provided to fulfil the responsibility of the file (if the applicant is different from production companies for legal persons, should also provide related material production enterprises) sth “requirement. Handset products, network access license legal regulation of receptors are cell phone manufacturers or manufacturers agents. Say, such administrative approval no direct legal rights between licensing and consumer obligations.
2, cell phone users purchase cell phone number of the resource license.
Mobile phone number belonging to come into effect on March 1, 2003 the Ministry of information industry << telecommunication networks, resource management, code >>, (referred to as << network code methods >>, the same below) Chapter Seventh, second subparagraph (ii) provided for in the mobile network code. Under the current << Telecommunication Ordinance >> chapter II of the fourth section, “telecommunications resources” 27th to 30th article on “sth Telecom resources, is refers to radio frequency, and satellite track location, and telecom network code,, for implementation Telecom function and limited of resources sth sth “of provides, and << Ministry administrative license provides >> on telecom network code, resources using approval” without information industry department or province, and autonomous region, and municipalities communications authority approved, any units or personal shall not be without authorization enabled telecom network code, resources “of provides, and and << network code, approach >> third chapter” Code, resources of using “19th article third paragraph” this approach by said code, using who, is refers to allowed using code, resources of Telecom business operators, and dedicated telecom network units, and government sector, and social groups and other enterprises, “of provides known, the administrative approval of legal regulation receptor for allowed using code, resources of Telecom business operators, and dedicated telecom network units, and government sector, and social groups and other enterprises,-the-the for phone number using who,, main is refers to telecom enterprises main, In particular, mobile operators. Say, such administrative approval no direct legal rights between licensing and consumer obligations.
3, into the network license, license, network access for network access between test legal relationship analysis
Mobile “network license” and “network license”, “into the network test” between the three concepts have to do with it?
First, the phone into the network license what is the legal relationship with the network license? Under << Ministry administrative license provisions >> in the on Telecom device into network license approval of “implemented into network license system of Telecom device should get information industry Department issued of into network license (containing into network trial approval, with); is not get into network license of, shall not access public telecom network using and in domestic sales” and “implemented into network license system but provisional no national standards, and industry standard of Telecom new device, by detection institutions under international standards, and Enterprise standards determine the appropriate testing standards and reported to the Ministry of information industry after validation testing, and issue a test report. The Ministry of information industry to review test reports and related material, subject to national industrial policy and does not affect the network under the condition of the safe and smooth, issuing trial approval approval into trial, pending enactment of the national standards, industry standards and procedures into the network license. Get into the trial approval of new telecommunication equipment should add to stick into the trial of mark “provisions of the mobile phone into the network license approval has two approval: first official into the network license, second the beta into the network license. They belong to the same type of administrative examination and approval of administrative license for telecommunication equipment’s entry into network. Also, as long as no violation of the prohibition law, both within the legal license period network access license for telecommunications equipment approval has the same legal effect.
However, “should add to stick into the trial of mark” provision of trial sign is a sign of what kind? Because of the State Council of the existing << Telecommunication Ordinance >> and << the Ministry of administrative licensing requirements >> no trial trial signs for detailed provisions of the network access license, nor to any requirement to network access license, so there are good reasons to presume mobile phone network access license that is trial network access license for: 1, China’s existing << Telecommunication Ordinance >> and << Ministry administrative license provisions >> are is not on network license for provisions, if it belonging to separate of administrative license approval type, on suspected violation has in China existing << administrative license method >> on administrative license rule of law principles of provisions, belonging to illegal of administrative license approval; 2, and currently phone user can bought of phone General are posted has “into network license” label, only minority phone posted has “network license” label, and, currently market Shang and no posted ” In the net trial license “label sales; 3, if phone manufacturers stick” into the network trial license “label, also in violation of the principle of equality, against the interests of mobile phone manufacturers. According to << the Ministry of administrative licensing requirements >> on “implementing network access permission system but no national standards, industry standards, telecommunications equipment, by the inspection body in accordance with international standards and enterprise standards determine the appropriate testing standards and reported to the Ministry of information industry after validation testing, and issue a test report. The Ministry of information industry to review test reports and related material, subject to national industrial policy and does not affect the network under the condition of the safe and smooth, issuing trial approval approval into trial, pending enactment of the national standards, industry standards and procedures into the network license. Get into network trial approval of Telecom new device should plus posted into network trial flag “of provisions known: trial of reason is” provisional no national standards, and industry standard “; trial of object is” provisional no national standards, and industry standard of Telecom new device “;” provisional no national standards, and industry standard “of causes and phone production manufacturer of has nothing to do, because has legal effect of phone products of detection standard need national communications administration organs be developed or recognized ; More important of is if let new phone products production manufacturer because administration organ no detection standard and posted Shang “trial” of words, will serious effect the phone products in market Shang of sales (no national standards and industry standard of new products most are is has better of using function and effect of products, even so, consumer are does not hope himself high purchased of phone is one is accept trial of phone); 4, and years yiqian, in China no independent intellectual property of phone products, and production device and detection standard, Largely imported from abroad, constantly try and amendments, and related conditions and facilities at maturity to be promoted, legalization, standardization and related inspection standards, which is also facing high-tech products is constantly updated, the Administration should adopt a correct attitude. Visible, replaced with the network access license concept into the network trial license though in law there is a rigorous, unreasonable, indeed a helpless choice of Department in charge of communications (but the State Department in charge of communication still need strictly grasp the network access license administrative examination and approval, to examine the implementation and licensing matters. Because there are no new testing standards does not mean not subject to the General standard for mobile products, such as signal reception capability, call quality, battery cooling features such as the original national standard or industry standard). Based on this analysis, we fully into the network license can be understood as the legal relationship and network licenses: licensing into the network license is equivalent to the network, they legally belong to the same type of administrative examination and approval of administrative license for telecommunication equipment’s entry into network are different manifestations of the same administrative approval, both have the same legal effect.
Second, network testing and network access license, into the network license trial (that is, network licenses) and what does it matter? Under << Ministry administrative license provisions >> in the on phone into network license administrative approval of application conditions in the “application into network license of radio communications device, and involved network between interconnected of device or Telecom new device, should for at least three months of into network test” of provisions, we can such understanding: into network test is phone into network license detection units in detection process in the, will was detection phone access national public network on its performance, and quality, for test of a method and means. Use into the network of various testing methods to be tested, test phone for testing if it meets the performance, quality and other requirements (such as national standards, industry standards, the common criteria), the phone into the network license awarded to applicants (including trial), otherwise, it dismissed the applicant’s application. That is, into the network test is qualified into the network license (including trial) statutory framework, one of the network access license (including the network access license) are included into the network of various mobile phone testing methods, test using one of the legal consequences arising after.
(Ii) the legal relationship between mobile phone users in receipt of public communications services
Through the purchasing behavior of consumers mobile phones legal relationship analysis can be concluded that legal judgments phone into the network license users buy legal relationship only exists in mobile phone production between manufacturers and their agents and the State Department in charge of communication; from a legal judgment on mobile phone number that the user purchase license legal relationship exists only between the telecommunications business operators and the State Department in charge of communications. And that relations between the two kinds of administrative permission law are not directly related to mobile phone users. << Telecommunication Ordinance >> the fourth chapter in section II “telecommunication devices into the network” is not clearly defined the legal regulation of network access license, except in the fifth chapter “telecommunication security” requirement for organizations and individuals in the course of use of telecommunications networks prohibitive duties. Whether consumers buy phones and gain access to public communications networks for the use of acts of States legally has no relationship with the State Department in charge of communication? The answer is no. Because << Telecommunication Ordinance >>, fifth chapter, “telecommunications safety” communications management is the provision of mobile phone users and States the prohibitions of the legal relationship between the executive authorities.
Under normal circumstances, after the mobile phone users to buy mobile phone products and cell phone number, but also through a “open service” procedure. In this process, the telecom service operator license agreement require user sign mobile phone network, marking the user accepts the license terms for network access. First, China Mobile (Group) Corporation (referred to as China Mobile, the same below) GSM mobile phone user experience to the mobile network license agreement signed is particularly impressive: for GSM mobile phones in mobile phone services means of payment is “after the first payment” according to mobile phone users actually paid real using a number of sales per month. To establishing credit relationships between mobile subscribers with China Mobile, mobile requirements mobile users who registered, or provide effective guarantors of security (identity registration of guarantor) approach. Second, other telecommunications operators for mobile phone users to which it belongs and China Mobile for GSM mobile phone users other than the user adopts a “prepaid” mobile phone service charges paid, that is, cell phone users according to their needs to the mobile phone number belongs to purchase its telecommunications business making phone calls with the fixed amount recharge card, effectively guarantee the telecom service operator service fee income. Mobile phone users, including mobile network license agreement, did not personally sign the various legal documents, but by the dealers sells mobile phone number of distributors, resellers to fill in to complete a mobile user network license agreement procedure. However, mobile phones and telecom service operator licensing agreement between mobile phone network, whether it is << Telecommunication Ordinance >> under the mobile phone into the network license or telecommunication network code resource licensing? The answer is no. Because, telecom operators and mobile phone user is the legal relationship between equal civil legal relations, by the State consumer rights protection law and civil law protection; phone into the network license or telecommunication resources, network code license is individual organizations and the State Department in charge of communication between the administrative license law, State regulation and adjustment of administrative laws and regulations. Telecom service operators (mainly telecom operator) agreement was signed between mobile phone users and mobile phone network for protection and regulation of telecom operators and consumers established for the benefit of legal relations between the two parties; mobile phone into the network license or telecommunication network code resource licensing legal relationship which is designed to protect the country’s traffic management order. Today say Government-led prepaid mobile phone laws aimed at mobile subscribers and national communications a new legal relations between administrative departments, so them in nature are fundamentally different legal relations.
(C) the legal definition of prepaid mobile phone users in China
So what is the prepaid mobile phone? I think the meaning of prepaid mobile phone analysis, taking into account the overall situation of the telecommunication services market in China, in order to achieve its greater inclusiveness, mobile communications, satellite communications, telephone and telecommunication services such as business information on the identity of the Registration Act and its requirements should be broad. At present, China’s laws and regulations and other normative documents are not substantively about this requirement, do not have the relevant scholars, experts in the field of specialized definition.
Therefore, we should use “communication real name” will “of prepaid mobile phone” concept replaced. So-called communication under real names means pursuant to state law and regulations, communication service users (including natural persons, legal persons or other organizations) with Terminal communication device accepted national public telecommunications services, the person should be registered using real-world identity information communication management system. User identity information includes: (1) users as individuals, should be valid identity information of registered users, such as identity cards, passports, MTP, Sergeant permit, and (2) units of users, should Subscriber ID information, such as business licenses and other legally valid approval certificates. The author below will be used “communicate real-name” concept to replace the concept of prepaid mobile phone.
Second, communicate real-name system and protection of the right to freedom of communication
Right to freedom of communication is the exchange for the free flow of information between citizens without the intrusive, freedom from infringement of their rights and citizens ‘ right to self determination and others for the free flow of information for the exchange of content and keep it secret (or non-consent not be published) rights. Individuals constitute members of society, but individuals have in the case of not a threat to society members maintained independence or maintaining a certain level of the individual right to freedom of personal independent living space-this is an individual as a member of the rights of individuals, and the other members are mutually independent, free choice of basis of rights and mutual respect. And people to its unique of thinking way and Exchange way and animal constitute most fundamental of difference, this difference means with personal has under personal wishes and preferences free select Exchange object of rights, especially human unique of social genetic way in people and people Zhijian formation has those degree different of social relations-the-the this is also family in human social organization in the keep its important and unique of social role of roots-the-the This those degree different of social relations decided has personal and others for information exchange Shi by produced of trust degree not same; while, human social General exists with moral value concept of differences, personal General does not hope part of other social members understanding its non-common will of range within of personal information, and social community in the all members of this non-common will of range within of personal information need was entire social members community of respect: this is communications free right and communications secret protection of social reason and legal foundation. Thus, personal communication between the exchange of information with others, especially a degree of genetic relationship between the members of the content of the exchange of information, it will inevitably become members of the community of non-important part of the personal information within the scope of the common will.
Countries around the world including freedom rights as citizens ‘ basic rights protected areas, China is no exception. China’s Constitution article 40th: “People’s Republic of China citizen’s freedom and privacy of correspondence is managed by the protection of the law. Except in cases of national security or tracing criminal offences require, by the procedures of public security or procuratorial organs in accordance with the law on traffic checks, any organization or individual may, on any grounds, infringe upon the freedom and privacy of correspondence of citizens. “It is in China’s current legal system of protection for citizens ‘ right to freedom of communication with the highest legal effect of provisions, as well as the right to freedom of communication types into the constitutional basis of the scope of protection of basic civil rights. At the same time, China’s current << People's Republic of China criminal law >>, No. 252 also specified violations of citizens ‘ right to freedom of communication shall be subject to criminal sanction.
For any of the rights and freedoms must be done in within the scope of the Community subject to certain restrictions, that is, the exercise of rights and freedoms shall not be detrimental to the public interests of the community of certain members of society, this is the right to freedom of communication in the context of legal provisions subject to certain restrictions of the basic theoretical basis. Which finds expression in our Constitution, the criminal code and other laws and regulations against sexual norms, such as our current << People's Republic of China prison law >> 47th on criminals in prison to special restrictions to the right to freedom of communication, this article does not give a detailed description. But for the restrictions on the right, should also be provisions against restrictive measures, that is, to limit the right to freedom of communication should have enough factual reasons, the legal grounds and should fully comply with the due process of law: in order to meet the need to hold the criminal offence, under the law through the criminal justice authorities to citizens communications checks with the approval of power. For example, our current << People's Republic of China criminal procedure >>, 116th “investigators who feel the need to arrest the suspect mail, Telegraph, when approved by the public security organ or the people’s Procuratorate, notification of posts and telecommunications authorities check the relevant messages, telegrams seizure” and “do not need to continue detention when should notification of posts and telecommunications authorities. “Rule.
Communication under real names will pose to our citizens ‘ right to freedom of communication new restrictions? The answer is no. Because communication the notion of real-name itself is not in the legal aspects of public communication service users pose any new substantive limitations, whether literally, as a limit, or the content on the restricted, there is no legal restrictions of the right to freedom of communication on the original content to be expanded or reduced. Communication under real names only to users of public telecommunication network attach a positive legal obligations, such additional obligations already present in the existing law within the limits of the right to freedom of communication, is the refinement of existing legal restrictions, more precisely, is the concrete implementation of existing legal restrictions of the ways and means. I believe that communication under real names itself the right to freedom of communication in any degree are not protected from a legal point of view constitutes a positive or negative meaning. Communications real-name system itself is a neutral of legal concept, if said it on was Constitution protection of public communications free rights up to a species role words, main performance in two a aspects: first, if citizens communications free rights was against Shi, communications real-name system will makes communications free rights from should so rights conversion to real so rights Zhijian of time interval cycle shortened has (because communications real-name system conducive to quickly identified violations citizens communications free rights of “murderer”); second, If the citizen’s right to freedom of communication when exercising more than free range prescribed by law, communicate real-name system helps rapidly to transform the legal restrictions on the right to freedom of communication in real life, restrictions on freedom of communication rights-holders – the limit itself, is also prohibited in the Constitution and the law on the right to freedom of communication in the specification and realization of public interests to protect. Of course, this role effectively, both established in the social environment of ruling by law in which we have enough on the nature and status of the right to freedom of communication already exists sufficient awareness and social improvement of legal protection mechanisms on the basis of the right to freedom of communication.
So, I believe that communication between real-name system and protection of the right to freedom of communication there is no contradiction at all. Communication implementation of real name nor for freedom rights in law pose no obstacle instead from another angle for freedom rights truly be realized offering real protection and or it makes legal freedom rights are implemented – this is communication of prepaid basis.
Third, communicating real-name system and the protection of privacy
Privacy personal secrets, a non-consent and not for others to know and violations of personal secrets. Privacy without my consent I enjoy rather than by others know that personal secrets and violated rights, General personality right legal context specific one.
Privacy of correspondence in a certain sense also fall within the scope of individual privacy. Because communications free rights is means citizens Zhijian free to for information exchange and does not by disturb, and does not by against of rights and citizens right to itself determines and others free to for Exchange of information content and keep its secret sexual (or non-by I agreed does not was open) of rights, communications secret is also non-by I agreed and does not for others by known and violations of personal secret of organic part. Therefore, the law on the protection of privacy of correspondence, but also to individual privacy rights-protected content. We know that the legal protection of a fundamental right can express provisions in the legal text or non-express method embodiment of the protection of the rights of the content or the spirit of the law; protection of certain rights you either on a large scale in view of the way in making the required or from micro-to requirements in a detailed manner on. In legal practice which in one way, depending on the nature, types, methods of protection of that right, as well as legislative recognition to that right. If lawmakers think a specific right to privacy is very important to its community, so in this special protection is not at all excessive it on so that you can be listed separately on the legal provisions. China’s Constitution article 40th “People’s Republic of China citizen’s freedom and privacy of correspondence is protected by legal sth” requirement can be seen, right to freedom of communication in the protection and the protection of privacy of correspondence in our Constitution provisions having the same status, but belong to the basic civil rights protection with different content types – otherwise, the article appears repeatedly. We from communications free rights and communications secret itself of content also can see both belonging to different of legal rights type: communications free rights of content including legal is allows citizens Zhijian mutual communications to, is allows citizens free select communications object, citizens free communications channel is smooth,; communications secret protection of content including citizens personal communications of content belonging to personal privacy, communications of content non-by I agreed shall not for others known and violations, citizens communications content does not has legal clear provisions of facts reason, Without due process of law citizens have the right to refuse to accept checks or disclose its contents. Article 39th of the Constitution: “the People’s Republic of China the residences of citizens are inviolable. Prohibiting unlawful search or illegally breaking into the residences of citizens “requirement can also be seen as one of the constitutional basis of citizens ‘ privacy rights protection. Therefore, that China’s legal views on privacy rights of citizens have not made any provisions does not hold water. In addition to the provisions of the Constitution, 39th, China’s existing laws and regulations on the protection of citizens ‘ privacy rights require few, especially in China, including the civil law the Department-law has not been formally establishing the legal concept of privacy, nor to protect the privacy rights of citizens of specific administrative, judicial rules! Have to say this is a legal shortcoming!
The Supreme People’s Court announced on March 10, 2001 << on several problems of determining civil right infringement spirit damage compensate responsibility explained >> first paragraph “social morality against violations of social and public interests, privacy or other personal rights of others, by the victim for infringing people’s Court requesting compensation for moral damage, the people’s Court shall be admissible according to the law. “Can be seen that the judicial interpretation would otherwise fall within the scope of basic civil rights of the legal nature of the right to privacy as” privacy interests [②] “. Because the final reflection of the fundamental rights protected by law for a benefit or interest because of the judicial interpretation on the surface without any problems. However, citizen empowerment and protection of the fundamental rights or should be reflected in legislative level in the first place, otherwise, judicial activities will not have confirmed by referee activities previously enjoyed by parties to some actual facts and the legal basis. Anyone enjoyed of actual interests should first from Yu national on a a or a several rights of legislative protection, this actual interests of enjoyed because judicial referee power of implementation and get implementation, should is in legal on Gets the actual interests phase corresponds to of some rights for has effective of legislative protection zhihou, by judicial organs through judicial trial activities on actual interests (rights of belonging is legislative has arrangements good has of) of belonging problem in party Zhijian made can reflected social justice of has forced binding of judicial distribution. That is, the object of violations should be made any violations (including tangible and intangible matter) manifested in social relationships or acts as the primary content of the subject right, not just a benefit. Especially in related legal regulations on a item basic rights no clear of provisions Shi, judicial explained on will its simple to equivalent Yu will Yu judicial trial activities ended of Shi to judicial referee forms performance out of a species or a several interests form, basic rights of legal protection will degenerated into without judicial trial is was judicial organs to fixed of language text materialized has of interests belonging, is does not too properly of.
Therefore, I believe that communication real-name system and the protection of privacy rights does not contradict, the two should go hand in hand. But by communicating real-name system due to concerns about the legal protection of the privacy rights of citizens, sufficient attention should be given.
Four, communications legal purpose and legal basis for the real-name system
Legal purpose is through legislative and law implementation should reach the social subject regulating and control purposes or further stresses, norms and control is through social subjects, law norms and social role formed legal order purposes in society social justice. However is a rather abstract concept of Justice, social justice, from the highest level of legislation, constitutional Government and pursuit of the highest goals of the Constitution, constitutionalism and the constitutional basis for the formulation of. A country, once the owner of the Constitution, other legislative activity needed is based on the Constitution. The provisions of the Constitution, that considered all legislative activities except the constitutional standard of justice. If the Constitution is to achieve social justice for the purpose, then, apart from the Constitution is the law in various legal departments in the field of implementation of Constitution recognizes social justice, that is, legislative activities except the constitutional legal aims to achieve social justice in some one or some of the content. Therefore, communicating real-name system, legal purposes it ought to be: implementing article 40th of the Constitution on freedom of communication and communication secrecy protection constitutional purpose. Legal basis refers to a specific individual or organization acts (including acts of legislation, administrative action, judicial acts, individual or organization acts) as a legal Act (or legal) provisions required by law. Legal provisions is that the legislature will be shown by the legal purpose in writing language combinations, with language as the outer form, with the purpose or spirit of the law as of substance. Addressing legal purposes, required specific provisions to the legal provisions for clues, so legal purpose and legal basis we do not have to be completely separated.
According to this article in the “communicate real-name system and protection of the right to freedom of communication” and “communicate real-name system and the protection of privacy” in the discussion of the real-name itself is a neutral concept of communication, does not have any of the laws on protection of the rights or restrictions on the rights of the new content. However, the real-name system is also available as a legal method of communication concepts, that is, while communicate real-name itself is a neutral concept, it is also for the protection of the right to freedom of communication and the implementation of legal restrictions on the right to freedom of communication was facilitated. First of all, from the perspective of protection of the right to freedom of communication, mainly to the 40th “People’s Republic of China citizen’s freedom and privacy of correspondence by the law protecting sth Any organization or individual may, on any grounds, infringe upon the freedom and privacy of correspondence of citizens “to implement the provisions of. Because, in real life, some economic organizations or individuals using public communication network users no real name identification of vulnerability, feel free to send spam messages to common traffic users or call harassing phone calls, engaged in commercial activities or illegal activities, not only violated the common traffic users should have the right to freedom of communication (especially the right to select communication objects and communication of information to choose), Increased two-way toll system (of mobile communication needs are both standard payment as required public communications service fee payment system) public communications use involuntary commitment under economic burden. When such behavior occurs in common traffic when users rest at night, also means resting the citizens legally constituted a violation of the rights. More important is that when the infringement occurred, the administrative authorities (the protection of the rights body) has no way of knowing violations people (tort) who he is, there is no way to clear infringement liability, not to punish the tortfeasor, this means that the right to freedom of communication protection of the law cannot be put into practice. And communications real-name system is good to resolve has this a problem: it makes rights protection main is easy know is who violations has public communications using who of communications free rights and communications secret, thus in communications free rights and communications secret protection of legal provisions and communications free rights and communications secret protection of legal practice Zhijian frame up has a seat bridge-the-the is this seat bridge, makes communications free rights and communications secret protection became reality. Second, from the limited perspective of the right to freedom of communication, China’s Constitution article 40th “sth Due to national security or tracing criminal of need, by public security organs or procuratorial organs in accordance with the legal provisions of program on communications for check outside sth sth “of provisions reflected has on citizens communications free rights of limit, and in China << criminal procedure method >> 116th section” investigation personnel think need seized crime suspects of message, and Telegraph of when, by public security organs or people’s Procuratorate approved, to notification posts and telecommunications organs will about of message, and Telegraph check cross seized “and” Does not need continues to seized of when, should is notification posts and telecommunications organs “of content on Constitution 40th section” in accordance with the legal provisions of program “made has specific of program sexual provisions, existing << Telecom Ordinance >> fifth chapter” Telecom security “of provisions on Constitution 40th section” national security or tracing criminal of need “is abuse communications free rights of behavior performance made has specific of entity sexual provisions, existing << prison method >> 47th also criminal prisoners ‘ right to freedom of communication have made special restrictions. Similarly, when violations of the right to freedom of communication act occurred, the administrative authorities (the protection of the rights body) has no way of knowing violations people (tort) who he is, there is no way to clear infringement liability, not to punish the tortfeasor. Lost legal deterrence or prevention role is in certain extent encouraged the infringer’s wrongful acts, legal restrictions to freedom rights would become dead letter it. Lose the legal limit, also got used to abuse of the right to freedom of communication. Communication real name system the freedom rights abuse and freedom rights abuses of legal sanction a bridge structure of an essay – is this bridge, making freedom rights protection a reality. Therefore communications for which real name system role in both supporters provided the best reason on.
However, the implementation of communication under real names only with proper legal purposes it is not enough, you also need to have sufficient and adequate legal basis. Communications free rights and privacy rights as social public of basic rights, constitute has social public of private life space, they is so basic, so important, that should for they provides Omni-directional of legal protection: from Constitution to sector method, then to administrative regulations, and regulations, and endemic regulations and normative legal file; from entity sexual legal provisions to program sexual legal provisions; from legislative, and law enforcement to judicial,. That is, although China’s Constitution and other laws and regulations on the right to freedom of communication and privacy rights of citizens provided protection, but our current laws and regulations on the legal protection of the right to freedom of communication and privacy rights remains insufficient and inadequate. For example, the 40th article of the Constitution despite the protective legal provisions made to the privacy of correspondence, but no mention privacy right protection issues fall within the scope of basic civil rights, privacy of correspondence is only a small part of the personal privacy. More important of is, in China of legal and no on violations citizens communications free rights and privacy rights of legal behavior constitute and legal consequences for more and specific of provisions, dang citizens of basic rights was violations Shi, no specific of legal provisions as judicial organs reference of pursuant to, directly led has judicial organs in citizens basic rights protection area of absent, eventually led in China citizens of communications free rights and privacy rights protection titular. They are questions that the public are most concerned about: under the non-real-name system, when rights are violated or when the disclosure of communications, you can easily replace communication number (such as phone numbers), to avoid further violations of the can, or because non-real-name system, manufactured for violations to seek fixed against the target difficult. In contrast, if a real-name system, communication user identity must exist because of his negligence and result in the involuntary possibility of external communications, such as a company fully through the recruitment of staff from the personnel recruitment website for communication, on behalf of users of the mobile phone number, get cell phone number, and will get a communication user identification information. Also, implemented communications real-name system, also for social strong groups violations social vulnerable groups of property interests and personal interests provides has facilitate, as part corruption officials through others of phone number known its identity information, retaliating against supervision people, and informer, and witnesses,-the-the this class event does not necessarily common, may once occurred, on victims in body, and spirit Shang of hurt is huge of, even has may on life security of threat. Therefore, communicating real-name system, the negative role cannot avoid because of the lack of laws and regulations, not according to will inevitably lead to lax enforcement, impunity.
Anyway, modify and perfect freedom rights and privacy right protection laws implemented pursuant to become communications under real names cannot evade major issues.
Five, communications legal framework–real name from a legislative perspective
Communicate real-name system exactly what kind of laws and regulations based on it? This article from the legislative point of view, to citizens ‘ freedom and privacy right protection to thrust on the legal framework for communications related to the real-name system, legislative coordination, legislation giving simple spells.
(A) legal framework
First, the Constitution. The Constitution is the country’s fundamental law, basic matters in the State and social activities. China has been on the right to freedom of communication protection of the Constitution provides, but the provisions on privacy right protection should be added and modified, can also be exercised by the national people’s Congress Standing Committee before constitutional power to interpret the provision in article 40th expanded explanation. Constitutional modifications, then related articles into new constitutional official terms.
Second essential legal. (1), the substantive law: personality right law in the Civil Code establishing the right to privacy (including the privacy of correspondence) General personality right position and personality rights of the content and its form, shall bear the liability to make after the rights had been violated provisions. Although the Penal Code provides criminal liability for violations of the right to freedom of communication, but did not make provisions on criminal liability for invasion of privacy issues. Administrative laws and regulations to establish administrative arrangements to protect the rights of freedom and privacy, and violation of the relevant administrative regulations take administrative acts. (2), procedural law: restrictions on the right to freedom of communication of the criminal procedure law against restriction procedure provides, at the same time, should establish restrictions on the right to privacy provisions against restriction procedure. Civil procedure law and administrative procedure law also requires restrictions on the freedom and privacy rights provisions against restriction procedure. In the Basic Law of the relevant provisions of substantive law and procedural law for the protection of the right to freedom of communication and privacy rights and restrictions provided in judicial activities according to the referee’s substantive and procedural rules.
Third executive regulation, local, autonomous decrees, decrees and administrative rules it. Administrative rules and regulations can be without violating the Constitution, within the scope of the basic law, under enabling legislation on the protection and restriction of citizens ‘ right to freedom of communication and privacy rights making specific provisions. Local regulations can be based on the Constitution and the relevant provisions of the basic law, according to actual needs, to the right to freedom of communication and privacy rights as some refinement of provisions or the content of the Constitution and the basic law does not provide for provisions, but not on the right to freedom of communication and make new limits on privacy rights. Taking into account the special situations within the scope of regional national autonomy, autonomous decrees and special decrees based on the special situation of regional national autonomy places, stipulates. Administrative regulations for the Constitution, laws and regulations on communication requirements of the privacy protection of the rights and freedoms and rights, provides appropriate protection measures, especially how to implement the provisions of relevant laws and regulations, right to freedom of communication and privacy provisions on the protection of the rights of administrative procedures, and so on.
IV, based on the above arrangements, citizens ‘ right to freedom of communication and privacy right protection law system in China can only be referred to as full and complete, but this is our rule of law in the construction of systems engineering, to take a long time efforts and striving for can achieve. Therefore, in view of some users abuse of the right to freedom of communication and privacy rights, public interests (including national security, public order, and so on) urgent requirement of the conservation and protection of basic civil rights, laws and regulations also need to have a transitional arrangement.
Transitional arrangements is the hierarchy of legal norms of administrative regulations formulated by the State Council or by the Ministry of information industry, the development of administrative regulations do? with the continuous improvement of citizens ‘ legal awareness, constitutional protection of fundamental rights of the public about their increasingly public enthusiasm for social participation and getting higher. Due to the freedom and privacy rights on the rights of property of constitutional basic rights, the right to freedom of communication and privacy rights are specifications and limits legal hierarchy of needs depending on the specific contents of different and distinct. Communication under real names will communications users of basic identity information in addition to the national public security organs under the control of third parties, inevitably aroused the public’s leaked identity and fundamental rights of all the concerns of legal protection mechanisms are not perfect. Especially in citizens basic rights was violations zhihou, extremely need judicial power intervention award of when, this is especially important: because pursuant to in China currently of administrative litigation legal mechanism, State Council developed of administrative regulations belonging to judicial referee instruments in the should be reference of legal regulations pursuant to one, and State Council ministries developed of administrative regulations only belonging to judicial organs “can reference” (is judicial organs in trial activities in the on administrative regulations is be reference depends on judicial free conference volume right, Only after the review considers the judiciary can reference, references, otherwise, their legal effects could not be recognized in the administration of justice activities) the legal basis, if the judicial authorities in the trials after a review of no reference after reference, legal basis for communications under real names will be questioned, or by the judicial authorities identified as illegal. Therefore, implementing communication real-name system, this requirement is at least on the hierarchy of laws and regulations formulated by the State Council provisions for related administrative regulations.
(B) legislative interests coordination
Any legislative activity is the construction of a new coordination mechanism activities. Interests mainly refers to the powers granted and standardized, the rights conferred and limitations, rights and power of this shift between interactions. Therefore, granting and specification of the legislative process that is, power, rights and restrictions, rights and empowerment this shift of interactions between processes. To communicate real-name system legislation is concerned, in the following aspects:
First, the powers granted and compliance issues. Communications real-name system legislative involved administrative power of grant and specification of legal problem, such as, administrative organs on communications service using who identity information for custody of power range, custody power how exercise (authorized communications business operating who custody also is delegate communications business operating who custody,), and communications service using who identity information of custody rules and the custody requirements; administrative organs on communications business operators of regulatory duties, on suspected illegal of administrative behavior of specification and processing, and internal supervision and monitored system of established,.
Secondly, the rights conferred and limitations. Because of the right to freedom of communication and privacy rights fall within the scope of basic civil rights, should be determined by the Constitution, basic law and appropriate restrictions. Inter alia through the development of administrative regulations in the Constitution, the laws of the State Council of the range (which gives the scope of the legislation) within and outside the specifications, other administrative bodies do not have to create, expand or narrow the range of restricting fundamental rights in the exercise of power, only on the basis of provisions of the Constitution, laws and regulations on the protection of citizens ‘ fundamental rights and the ways and means of implementation of restrictions make provisions.
Third, the interaction between the right and power. The legislative process, between the right and power of communication and coordination mechanisms are particularly important. Is empowerment of rights and restrictions of fundamental law of the Constitution, no legislation, all in the Constitution as the basis, a friendly dialogue between the right and power, capable of producing legal effects only after both sides agreed. In the modern world, power class hands holds a large number of political, economic, and social resources in a strong position, right class held by the hands of political, economic, and social resources are usually in a disadvantaged position, and legislation to achieve a degree of balance of interests between the two. Communication under real names too, the it requires State administrative sectors of benefit and social public interest to balance,, let the parties expressing their communication to implement real name concerns is communications legislation of real name key.
(C) legislation
Because any legislative activity was construction of a new coordination mechanism of interest activities, legislators, legislative thinking on the quality of legislation, in particular in keeping the powers granted and norms, rights and restrictions, rights and empowerment of the interaction between benign interaction has a very important impact.
Communicate real-name legislation because of a national public establishment and standardization of social order, also deals with protection of basic civil rights need to be a high priority. Involved national public social order established and specification of problem Shi, need has enough full of Constitution, and basic legal provisions as legislative pursuant to, and cannot let Constitution on State power of limit terms was swallowed, more to protection national power exercise compromise; involved citizens basic rights insurance of problem Shi, need strictly in accordance with the Constitution of provisions on basic rights of meaning for interpretation, shall not change rights protection type, also no arbitrary narrow rights protection range; all for basic rights of limit content, Shall strictly constitutional requirements shall not enact new constraint types, nor any expanded explanation.
When a communication when the real-name system led by the Government pushing for legislation, in the legislative approach to pay special attention to the following three points:
First, strictly according to the Constitution and the Basic Law of government power and fundamental civil rights provisions of the Constitution and the basic law is the highest standard tests establishing and perfecting the social order, any interest coordinating mechanism should specifications and limits in the Constitution and within the scope of the basic law.
Second, State power is the power of the people becoming masters of that legislators should seriously listen to Community legislative advice and suggestions from the public, to encourage and promote public participation in the legislative process, reflect the stakeholders, in particular the interests of vulnerable groups needs.
Third, lawmakers, experts, interaction between stakeholders. Legislative who is legislative main, its legitimate of legislative power should was respect; related area of expert is the professional area of outstanding representative, heard they of views conducive to legislative activities of specification and rigorous; interests is at stake who is any legislative process in the are needs seriously considered of a special groups, dang this groups is vulnerable status and to on they of right for limit Shi, especially needs seriously to for interests coordination and weighed. Communication interaction between supporters and opponents of the real-name system is one of the best examples.