论个人信息权益滥用的私法规制

On the Private Law Regulation of the Abuse of Personal Information Rights and Interests

个人信息保护是当前理论和实践中的重要议题,但呈现保护有余而限制不足的现象。个人信息权益限制存在权利构成限制和权利行使限制两种模式,现行法主要采取的权利构成限制模式面临现实困境。以《民法典》禁止权利滥用原则为依据的权利行使限制模式对于限制个人信息权益具有必要性、可能性和优越性。个人信息权益滥用情形包括违反目的、利益失衡、矛盾行为、滥用形式瑕疵以及滥用诉权等多种表现形式。为合理构建个人信息权益滥用的判断标准,应将利益相关第三人纳入信息主体行使权益侵害对象之范围,将个人信息保护中的公共利益限定在合理范围,并构建以合理性和合法性为要素的权利行使行为的可苛责性分析框架,严格遵循司法救济的前置程序,并采取区分判断的方法。

Personal information protection is an important issue in current theory and practice. Although existing literature has got numerous research achievements with respect to personal information protection, it focuses on the discussion of the legal attributes of personal information, the discrimination of relevant concepts such as information and data, privacy and the construction and interpretation of specific rules such as consent, presenting the prominent problem of excessive protection but insufficient restrictions of personal information. Although some studies have noted the restrictions on the rights and interests of personal information, the attention on the abuse of the rights and interests of personal information is obviously insufficient. In this paper, the legal doctrine method is used to propose that there are two modes of restriction of the rights and interests of personal information, namely, the limitation of right constitution and the limitation of right exercise, and the author believes that the mode of the limitation of right constitution mainly adopted by the current law is facing a realistic dilemma. The restriction mode of right exercise based on the principle of prohibition of right abuse in the Civil Code has the necessity, possibility and superiority to restrict the rights and interests of personal information. Combined with the practice of personal information protection and the theory of right abuse, the paper summarizes the different forms of personal information right abuse in both dimensions of substantive law and procedural law, including violation of purpose, imbalance of interest, contradiction of behavior, abuse of form defects and abuse of litigation rights. By sorting out the regulations of the Personal Information Protection Law, it is found that there are still many problems concerning the specific rights and interests of personal information, such as lack of regulations and insufficiency or ambiguity of restrictions. In order to solve the problem of the limitation of the rights and interests of personal information and the difficulty of identifying the abuse of the rights and interests of personal information, this paper proposes to include the interested third party into the scope of the information subject to exercise the rights and interests of the infringement, to limit the public interests in the protection of personal information to a reasonable range, and to build a criticizable analysis framework for the exercise of rights based on the elements of rationality and legality. And this paper also proposes to strictly follow the pre-procedure of judicial relief and adopt the method of distinguishing judgment. In terms of legal effect, this article advocates that the third paragraph of Article 3 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of the General Provisions of the Civil Code of the People’s Republic of China is applicable to the abuse of the rights and interests of personal information. In the case of abuse of personal information rights and interests, “non-occurrence of corresponding legal effects” should be limited to the interpretation of non-effectiveness of rights. When information subjects exercise their personal information rights and interests and cause unreasonable losses to information processors, they need to bear corresponding compensation responsibilities. This study pays attention to the phenomenon of abuse of personal information rights and interests, and provides a regulatory plan based on the current legal system in China. This is not only conducive to the full implementation of relevant laws and regulations on personal information protection such as the Civil Code and the Personal Information Protection Law, but also provides theoretical support for the rapid development of the digital economy.