The application of "Civil Code" and "Personal Information Protection Law"

In terms of personal information processing and protection, the provisions of the Civil Code and the Personal Information Protection Law are also different. How to coordinate the relationship between the two when apply Great.

Three basic prerequisites

Article 1 of the Personal Information Protection Law shows that its legislation is based on the constitution, but it is not a departmental law or implementation law in the constitutional field, because its content contains a large number of specifications for personal information processing and protection between equal subjects. It aims to adjust the constitutional norms of state and people's relations, but is a typical civil norms, and is homogeneous with the relevant norms of the Civil Code. If it is not based on the content of the Personal Information Protection Law, and only focuses on its legislative basis, it is easy to obtain the conclusion that it cannot be directly applied to the civil field, so there is no direct connection with the Civil Code. This is the first prerequisite for straightening the relationship between the two, which can be called the concept of substantive civil law.

The second premise is the view of equality. According to Article 7, 2 and 3 of the Legislative Law, the Civil Code is the basic law formulated by the National People's Congress. The Personal Information Protection Law is other laws formulated by the Standing Committee of the National People's Congress. Go up higher than the latter. In fact, not only because the "Legislative Law" does not have such a level of effectiveness, but also because according to Article 7 and 3 of the Legislative Law, the legislative power of the National People's Congress and the Standing Committee of the National People's Congress has different authority. There is no difference between high and low, and the status of basic laws and other laws is completely equal. Therefore, the "Civil Code" and the "Personal Information Protection Law" only have the main differences in formulating, and there is no difference between high effectiveness. When the two regulations are inconsistent, the former cannot be rejected by the former.

These two premise are intended to emphasize the relevant formality of the "Code" and "Personal Information Protection Law", and specific analysis of specific norms should be made when straightening. Legal norms are the implementation of national legislative power, which focuses on the cognition and willingness of the highest legislature. In the relevant legislative materials, including the highest legislature and its composition agencies' explanation, review report, and interpretation of laws, etc. —Atly clearly specifically specified the connotation, we should respect these conclusions. Those who have different opinions on this should bear the contradictions such as specific norms and the constitution, the basic principles of the law, the contradiction between the legislative materials, and the conclusion that the conclusions have violated the case. Obligations such as justice and other arguments. This is the third premise, which can be called respect for legislation. This actually means that when clarifying the applicable relationship of the "Civil Code" and "Personal Information Protection Law", we should first understand their adjustment tasks, regulatory objects, scope of application, institutional connotation, etc. from the legislative materials, etc. In fact, it is not advisable to put aside their explanation. For example, for a word or a certain terms, it is believed that the two have different adjustments or scope of application, so that they do not commit river water, otherwise they will excessively leave the legislation from legislation. The cognition and willingness of the person is not conducive to their correct applications.

Three applicable relationships

Based on the above premise, according to different situations, there are three specifications and applicable relationships with the "Civil Code" and "Personal Information Protection Law".

The first is the differential relationship. Although the Civil Code and the Personal Information Protection Law are adjusted and protected by personal information, they are subject to different legislative purposes. There are many differences between the two. When applying, they must pay attention to these differences. For those who take it, pay special attention: (1) Different from the scope of application. According to Article 72 of the Personal Information Protection Law, the law does not apply to the behavior of personal information for natural persons due to individual or family affairs. All civil acts. (2) Differences of regulating objects. Article 3 of the Personal Information Protection Law shows that the law aims to regulate personal information processors to handle personal information activities. Article 73 (1) of the Law defines the personal information processor as the purpose of deciding the purpose of handling the purpose of handling in personal information processing activities. Organization and individuals of processing methods, and network service providers may not fully meet the standard. It is not a personal information provider to infringe on personal information of others. Article 1194 to 1197. (3) Differences of institutional settings. For example, Article 1034, paragraph 3) of the "Civil Code" distinguishes private information and non -private information. Protection Law "Bio -identification, medical and health and other sensitive personal information stipulated in Article 28 may be completely attributed to private information, but sensitive personal information such as religious beliefs may not belong to private information, and the privacy of the" Civil Code "cannot be given priority. Regulation.

The second is to give priority to the relationship. Article 92 of the Legislative Law establishes the rules of the "Special Law better than the general law". From a formal point of view, the "Personal Information Protection Law" is a law that specializes in the processing and protection of personal information, and its scope and regulatory objects are clearly limited. Compared with the "Civil Code", it should be specially applied.这种理解忽视了具体规范内容的区别，在分属《民法典》和《个人信息保护法》的两个规定能适用于同一情形时，若某一规定相较于另一规定在适用范围、 It is more special in constituent or legal effects, indicating that the legislators have special considerations about this and intend to make them prefer. Whether they are in the Civil Code or the Personal Information Protection Law, they are special laws that are preferred. The special law of the "Civil Code" is a specification of personal information protection for patients. For example, the medical expenses of the patient belong to the personal information defined by Article 4, paragraph 1 of the Personal Information Protection Law, but Article 1225, paragraph 1 of the Civil Code eliminated it from the "medical record information". The scope of the patient's inspection and replication rights stipulated in paragraph 2, combined with Article 18, paragraph 1 (1) of the "Personal Information Protection Law", for medical expenses, the patient is not protected by Article 45 of the Personal Information Protection Law. For another example, according to Article 69, paragraph 1, paragraph 1 of the Personal Information Protection Law, the infringement liability for dealing with personal information infringement of personal information is damaged. The infringement liability of the medical records without the consent of the patient is not as important as the damage. The special law of the "Personal Information Protection Law" is the personal information protection specification of the deceased. Article 994 of the Civil Code stipulates that if the person's name and other personality interests are infringed, the close relatives have the right to request the perpetrator to bear civil liability, and Article 49 of the Personal Information Protection Law stipulates that the dead relatives of the deceased can only be legal, for their own legality, and for their own legality, and for their own legal and legal, the deceased is legal, and for their own legal, and for their own legality, it is just for their own legal and legal, and for their own legal and legal, the deceased is legal and legal, and only for their own legal and legal, and for their own legal, the relatives of the deceased must be legal and legal, Just to the interests of the deceased's personal information can be exercised, replicated, corrected, deleted, etc., except for the deceased, and the comparison of the two, the latter limits the exclusion situation (the deceased has other arrangements during his lifetime), constitutory elements constituent elements (The dead relatives of the deceased are more special for their own legal and legitimate interests), and they should be applied to priority. Article 92 of the Legislative Law establishes the rules of the "New Law better than the old law". Compared with the Civil Code, the "Personal Information Protection Law" is undoubtedly a new law. When applying this rule, special attention should be paid to: (1) the provisions of the same situation are inconsistent, otherwise the old law is indispensable. When judging whether the provisions are consistent, as mentioned earlier, the legislation should be fully respectful, and on this basis, comprehensively uses literary interpretation, system interpretation, purpose interpretation and other methods. For example, Article 1034, paragraph 2 of the Civil Code and Article 4 of the Personal Information Protection Law are incompletely consistent with personal information. It also highlights the "related" of natural persons, which seems different, but by consulting legislative materials, we can see if they can identify specific natural persons as definition standards according to information recognition. It should be treated in essence. (2) The "Special Law is better than the general law", otherwise the special provisions of the old law should be applied. The personal information protection specifications of patients in the "Civil Code" should be typical. Examples that apply to the rules of the "New Law Older Law" are the personal information that has been disclosed without reasonable processing. According to Article 1036 of the Civil Code, the responsibility composition must infringe the major interests of individuals, but according to the "Personal Information Protection Law 》 Article 27 The 2nd sentence, a major impact on personal rights and interests is the composition of its responsibility. The former limits the scope of interest and exclude non -major interests. Because they are in the same situation and there is no general distinction between general and special, Article 27 and 2 of the Personal Information Protection Law should be applied.

The third is to cooperate with the applicable relationship. The Civil Code and the Personal Information Protection Law have their own division of labor, which are not too late, and can cooperate with the relevant regulations of the other party. For example, the "Civil Code" lacks details such as informing consent and deleting rights, and can cooperate with the relevant provisions of the "Personal Information Protection Law". For another example, the "Personal Information Protection Law" does not involve the protection mechanism such as the right to request the right to personality and the right of personality rights. It also lacks detail regulations in terms of infringement liability. It can cooperate with the relevant provisions of the "Civil Code".

(The author is a professor at Peking University Law School)

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

Author: Chang Pengyan

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