The applicable logic of "Civil Code" and "Personal Information Protection Law"

In recent years, privacy legislation represented by the United States and the European Union has gradually formed a competitive situation of privacy legislation worldwide. my country's "Civil Code" specifically stipulates the protection of personal information in personnel rights, and then promulgated the "Personal Information Protection Law". As far as the relationship between the two laws and how to understand and apply, it has aroused certain arguments in the academic community. The "Personal Information Protection Law" has a typical "domain law" characteristics, which is closely echoing to the "Civil Code". key point.

Complement of the right of personal information subject rights

For individuals and public interests, they are the individual first. Even if the public interest on the personal information may be attributed to a broad sense of publicity to some extent, it does not deny personal information rights and personal information rights models. The claims contained in rights ensure the dignity and freedom of human beings, which is also the legislative purpose of the Personal Information Protection Law. In terms of legislation precedent, the civil code or civil legislation of the typical countries and regions of the mainland law basically does not clearly specify personal information protection. However, when the Chinese Code of the Civil Code "compiles, it coincides with the prosperity of personal information and data protection legislation worldwide, and the personal information protection regulations are compiled by the personality interests pointed by personal information, and Among them, the Chinese "Civil Code" reflects the significant characteristics of special protection of personal information.

As far as Article 1037 of the Civil Code, which focuses on the rights of personal information, is concerned with Article 44 to 47 of the Personal Information Protection Law, the two laws stipulates the same rights structure. Article 1037 of the Civil Code mainly specifies the right to check, copy, objection, and deletion rights of personal information subjects; the "Personal Information Protection Law" stipulates the right to know the right to know, decide, check, and copy the right to copy , Right to objection, deletion of the right and portable rights. As for the rights part of the two laws, the basic content and structure are the same; and the "Personal Information Protection Law" further enriches the right system of the subject of personal information. Unique, the increase in the rights of knowledge and the right to carry the rights also synchronize with the personal information and data legislation of the country.

The reason why the "Code of the Civil Code" and the "Personal Information Protection Law" is not only because the national law country itself is facing different laws to consider how to coordinate the application when the same issues, but also because There are disputes between nature because of regulations in different laws. For example, some theories believe that the rights in the Protection of the Personal Information belong to a programmatic right, and whether individuals can exercise their corresponding request rights based on the law. As a national law country, the law stipulates that it is the most basic basis. Article 44 to 47 of the "Personal Information Protection Law" stipulates that "individuals ... have the right", which means that individuals have the right to exercise corresponding requests based on law. As Devin said, when we say that someone has the right to do something, if others interfere with him to do this, then this intervention is wrong, or at least it shows that if it is to prove the reasonableness of the interference, Some special reasons must be proposed. This is the simplest understanding of the connotation of rights. The exercise and relief of such rights can be realized through judicial channels. At the same time, the state should also arrange the implementation of these rights through a series of institutions, but this will not produce negation of the corresponding request right.

As far as the application level of law is concerned, when explaining the content of the right, the right to check, replication, the right to objection, and the right to delete the rights can be applied at the same time. , Correcting and deleting obligations; the right to decide, the right to know, and the right to carry should be applied to the interpretation of the Personal Information Protection Law. With the core, the right to check the right to read the right, replication, objection, the right to delete, and carry the right to carry is a series of rights that are scattered. It can be seen that in terms of the content and rights of rights, the Civil Code and the Personal Information Protection Law are basically the same, and there will be differences in different laws because of these rights. It has the right to exercise the corresponding statutory rights to the personal information processor.

Personal information processor obligation

"Beyond the opposite nature"

Personal information protection legislation is based on large -scale, highly organized personal information processors as the regulatory prototype. In several parties such as "Personal -Personal Information Processor -State" of personal information protection, the obligation of personal information processors reflects a certain level of level: on the one hand, focusing on the "personal -personal information processor" Among them, the rights that individuals should enjoy are corresponding to the obligations of personal information processors; on the other hand, they are committed to the obligations of personal information processing from multiple perspectives such as national security, information security, and social risks. The fifth chapter of the "Personal Information Protection Law" stipulates that "the obligation of personal information processor" is mainly focused on the latter.

Personal information processors bear the obligations such as notifications, query, replication, correction, deletion, and carrying of personal information subjects. Based on personal information processing activities, individuals have the right to know their personal information and their own rights. Article 1035, 1038, and 1039 of the Personality of the Civil Code stipulates the principles and conditions of personal information processing, the security guarantee obligations of the personal information processor, and the confidentiality obligations of the relevant entities such as state organs. The "Personal Information Protection Law" stipulates the rules of personal information processing in Chapter 2 to stipulate the informing obligations and processing methods of personal information processors; Corresponding obligation. In terms of specific applications, the obligations stipulated in the Personal Information Protection Law are more detailed, and the corresponding provisions of the Civil Code will be beneficial to supplement. The specific application of the "Civil Code" can be directly applied to the "Personal Information Protection Protection". The provisions of the law. All in all, in the relative relationship between individuals and personal information processors, they still configure corresponding rights and obligations on how to protect the rights and interests of personal information. This kind of rights and obligations are relatively relative, corresponding, and matching. The most significant characteristic of technology for personal information processing activities is that it can realize the personal information processing behavior of massive scale and infinite frequency. These behaviors and activities not only affect personal rights, but also cause security risks. Therefore, the "Personal Information Protection Law" is more focused on the security guarantee obligations of personal information processors, the obligation to submit, compliance auditing obligations, and personal information protection. Evaluate obligations, notification obligations, and "obligation to see" and so on. As far as the application of law applications and responsibilities is concerned, although these obligations mainly involve administrative responsibilities, these obligations may also be the impact of whether the personal information processor assumes civil liability. In short, the obligation of personal information processors runs through the protection of personal information rights and interests, transcend the relative relationship between individual and personal information processors, and affect the protection of personal information rights and information security at more.

Civil liability for resumption

Personal information processors shall bear corresponding civil liability for infringing personal information rights and interests. In terms of the rights of the subject of personal information, the obligations of the personal information processor, the "Civil Code" and the "Personal Information Protection Law" are more reflected in the replenishment relationship. Essence However, in terms of civil liability, the Civil Code does not specifically stipulates the civil liability of personal information processors, and Article 69, paragraph 1 of the Personal Information Protection Law clearly stipulates the fault the responsibility of the personal information processor. That is, "personal information processor infringes the rights and interests of personal information, and personal information processors cannot prove that they have no fault, and shall bear the infringement liability such as damage compensation." This makes this paragraph of the "Personal Information Protection Law" regulations should be applied to the application of civil liability.

In judicial practice, the private law specifications in the "Personal Information Protection Law" belong to the relationship between the special law and the general law. Only by combining the relevant provisions of the two laws can the principles and rules of personal information protection be formed. system. Objectively speaking, the relationship between the private law specifications in the Personal Information Protection Law and the Civil Code is summarized. The special law characteristics reflected in the law are more obvious.

Although the Personal Information Protection Law is specially stipulated compared to the Civil Code in the principle of civil liability, the Civilian Code should still be based on the relevant provisions of the Civil Code and other aspects of the identification of damage and damage compensation. In general, the purpose of the damage compensation method is to fill, prevent and punish sanctions of damage, damage prevention and punishment. For the amount of damage compensation, in principle, it shall coordinate and determine according to Article 1182 of the Civil Code and Article 69 (2) of the Personal Information Protection Law. When a series of rights that infringe on the subject of personal information, the personal information processor shall bear the obligation to inquire and copy the inquiry and copy of the right to query and copy the right to replicate; ; For deleting rights, personal information processors should stop infringement and delete personal information. If the parties can prove that they are damaged by mental damage, they may request the corresponding mental damage compensation.

(The author is the Institute of Law of the Chinese Academy of Social Sciences)

Source: China Social Science Network-Journal of Social Sciences of China

Author: Yao Jia

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