免受自動化決策約束權的理論建構及中國方案

Theoretical Construction of the Right Not to Be Subject to Automated Decision-Making and China's Solution

免受自動化決策約束權是維護數據主體權益的強效算法權利，其具有權利內涵豐富、行權體系複雜的特點。作為規制算法的先行者，歐盟和美國都對此項約束權作出制度回應，歐盟率先進行確權並從個人數據保護為中心的理念出發建構治理框架，而美國則結合其自由主義傳統採算法違規規制為要義的治理模式，兩者各有利弊。我國在算法治理領域已處於世界領先地位，對此項約束權正通過以《個人信息保護法》為基點，《互聯網信息服務算法推薦管理規定》《電子商務法》等各法律領域規定分治的模式搭建行權監管機制，但在法治實踐中仍存在法律資源不敷、治理體系不健全等缺陷。為實現更高效算法治理，我國需借鑒歐美之策，建構精準化規制、系統性監管的數據主體行權制度。

The right not to be subject to a decision based solely on automated processing is a powerful algorithmic right to safeguard the rights and interests of data subjects. It has the characteristics of the rich connotation of rights and a complex exercise system. As the forerunner of the regulation algorithm, the EU and the United States have made institutional responses to this right. The EU takes the lead in confirming the right and constructs the governance framework from the concept of personal data protection, while the United States adopts the governance model of algorithm violation regulation in combination with its liberal tradition. Both have their advantages and disadvantages. China has been in a leading position in the field of algorithm governance in the world. For the right not to be subject to a decision based solely on automated processing, we are building a power supervision mechanism by taking The Personal information protection law of China as the basic point, The Regulations on the recommendation and management of Internet information service algorithms, The£-commerce law, and other legal fields as separate governance models, but there are still insufficient legal resources in the practice of the rule of law Imperfect governance system and other defects. to achieve more efficient algorithmic governance, China needs to learn from the policies of Europe and the United States to construct a data subject exercise system with precise regulation and systematic supervision.