論數據產權登記的制度構建

On the System Construction of Data Property Registration

數據產權登記制度是數據基礎制度體系中的關鍵性制度，但由於全國統一的數據產權登記制度尚未建立，數據產權登記的功能與模式、機構與客體、法定效力等均面臨法律困境。數據產權登記應當發揮數據資產確權、可信交易、擔保融資以及數據監管等功能。基於制度成本考量，數據產權登記不宜採取被其他權利登記方式吸收的“並軌制”，而應當採取與之並行的“雙軌制”。就具體制度而言，應當秉持系統統一、中立普惠的原則設立登記機構；登記機構的審查義務不必桎梏於實質審查或者形式審查，明確審查事項和審查程序更具實益；登記客體則以資產屬性為確定標準。隨著數據產權統一登記系統的建立，數據產權確權系統與數據權利擔保系統可以合二為一，由此解決數據權利擔保的公示問題。數據產權登記的法定效力以登記對抗主義為原則，在數據直接關涉公共利益時保留登記生效主義之例外。

The data property registration system is the key system in the data basic system, but the national unified data property registration system has not been established, and the local registration rules are complex and diverse. In practice, there are many problems such as different registration modes, scattered registration institutions, unclear registration objects and ambiguous registration effectiveness. Based on this, it is necessary to build a data property registration system theoretically. There are many differences between the data property rights registration system and the traditional property rights registration system, and the two are obviously different in function orientation and specific content. Herefore, the specific construction of data property rights registration system needs to conform to the characteristics of data and data market. The evolution process from data resources to data assets and then into data capital follows the logic of gradually accumulating and realizing the value of data assets, while data property rights registration runs through the whole process of realizing data resources, giving full play to the functions of data asset ownership confirmation, trusted transactions, guaranteed financing and data supervision, especially encouraging data property owners to actively disclose data information. It will help break the information barriers of data trading, form a fair trading market, and prevent and control trading risks. Based on the system design cost, registration cost and inquiry cost consideration, data property rights registration should not adopt the "parallel system" absorbed by other rights registration methods, but should adopt a parallel "dual-track system". As far as the specific system is concerned, registration agencies should be established in accordance with the principle of system unity, neutrality and universal benefit, and a unified national data property rights registration system should be built to separate data exchanges and data property rights registration agencies. The examination obligations of registration institutions need not be confined to substantive examination or formal examination, and it is more beneficial to clarify the examination matters and examination procedures. The object of registration should be determined by the asset attribute. Since the data resource asset catalog also has asset attribute, it can also be included in the scope of the object of registration. Data transactions cannot form sufficient public credibility through possession, and the creation of a credible environment needs to rely on the public credibility of the registration system with national mandatory force and national credit endorsement, and registration should be the only way to publicize data property rights. Data property registration should adopt data-based registration similar to asset-based registration. With the establishment of data property rights unified registration system, data property rights confirmation system and data rights guarantee system can be combined to solve the problem of publicity of data rights guarantee. In order to avoid undue interference in data liberalization and diversified transaction mode, the effectiveness of registration shall be determined according to the classification of the data and the degree of relevance of the data to the public interest. Specifically, free registration should be the principle, compulsory registration should be the exception, and its legal effect should be the principle of registration antagonism and the exception of registration validity. When the data belongs to the important data or the national core data, it should adopt the compulsory registration, and it is not effective without registration. For general data, it should adopt the doctrine of registration antagonism, and no third party shall be confronted without registration.