Abstract: The separation of data from the insolvency assets should follow the general conditions that the object should be identifiable and the claimant should be entitled to do so, while adjustmentsshould be made according to the physical and legal characteristics of data. In the examination of the problem of the separation of data in the bankruptcy process, it is first of all necessary to differentiate between data and information. The data which are identifiable by means of their storage medium or on a virtual basis can be separated. The question of whether there is a right to separate is to be determined according to the contract as well as usages, circumstances and codes of practice. Namely, the contractual provisions on the ownership of data should be recognized in the bankruptcy process as enforceable.In the more common cases of data outsourcing, service outsourcing and cloud computing, the clients and users should be able to claim their data on a contractual basis whenthe service provider went into bankruptcy. In other contractual relationships, the right to claim separation should be determined on a case-by-case basis. The claimant of separation is in principle the data owner according to the contract. Concretely, the separation of data would be carried out by means of cut and copy, online transmitting, downloading and/or deleting. From the point of view of comparative law, there is already a legal provision on the recovery of data. It is worth considering to include the provision on the separation of data from the insolvency assets on a contractual basis.

Keywords:separation from the insolvency assets; data ownership; data outsourcing; data exchange; cloud computing

Author:Yu Jianan, Ph.D. in Law, an assistant research fellow at CASS Law Institute andan editor at Global Law Review.

Source: 5 (2021) Science of Law(Journal of Northwest University of Political Science and Law).