Legislative Passivism and Judicial Activism in Digital Governance
With the increasing risks in the digital field,enacting new laws to proactively re-spond to digital risks is the instinctive choice of lawmakers in many countries.EU legislation advo-cates activism,while US legislation is relatively restrained.China's legislation is greatly influenced by the EU and constantly follows the EU's footsteps in introducing laws such as the Personal Infor-mation Protection Law and the Data Security Law to control digital risks.However,lawmakers will unconsciously take"security first"rather than"efficient development"as the value pursuit,and legislative activism will eventually lead to strong regulationism,and the intricate law connection will hinder the rapid development of digital technology.In the early stage of the digital economy,China's legislation needs to pursue passivism,leaving room for the development of new technologies and in-dustries.This does not mean legal inaction,but requires the law to shift from"comprehensively con-trol risks through systematic legislation"to"solving practical problems through flexible precedents".In line with the concept of judicial activism,judges can judge new cases from the standpoint of the wholistic legal order without rigidly adhering to specific provisions.Judges can overcome the defects of laws in industrial era through innovative cases,or apply central documents to solve data disputes in blank areas of law.For the conflict of cases,the Supreme People's Court should establish a re-view system to ensure cases be judged according to similar criteria.
legislative activismstrong regulatory modejudicial preemptioncase lawsame case and different verdict
万方数据
维普
