| The current theory of state’s obligation to protect personal information maintains that personal information should be covered in the scope of the protection of basic rights and that a legal system for personal information protection should be established on the basis of the state’s obligation to protect personal information. However, in terms of conceptual expression, the theory uses the term “objective law” to characterize the attribute of the fundamental right to personal information, resulting in the misplacement of the relationship between objective law and subjective right. By using the term “indirect effect” to refer to the validity of the fundamental right to personal information with respect to information processors as private subjects, it confuses the semantics of “validity” and that of “effect”. At the level of constitutional interpretation methodology, the theory has a tendency of philosophical interpretation of law at the macro level and suspension of general human rights clauses at the micro level, which makes it less persuasive in constitutional doctrine. In the face of legislative practice, this theory is unable to explain why information processors, as private subjects, undertake public law obligations. Establishing the dual structure of the right basis of personal information protection, clarifying the subjective right attribute of the fundamental right to personal information in a positive direction, appropriately extending the scope of the validity of this right, and adjusting the content of the state’s protection obligation accordingly, are effective ways to reshape the theory of the state’s obligation to protect personal information. |
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