个人信息主体同意撤回权的规范定位与冲突协调

Standard Positioning and Conflict Coordination of Personal Information Subjective Right to Withdraw Consent

同意撤回权与意思表示的撤回和撤销在行使对象和溯及效果上存在差异,该分歧本质上是同意撤回的性质争议。在行使条件上,同意撤回权面临主体范围不明确以及与法定许可界限模糊的问题。就适用对象而言,由于同意撤回符合“纯获利益”以及“与年龄、智力相适应”的特质,8岁以上未成年人不宜适用监护人同意撤回模式。替代同意人为欠缺行为能力的成年人撤回同意时须受到限制。就同意撤回与法定许可的关系而言,两者并存时必须择一适用。当涉及合同交易时,同意是个人信息主体履行提供个人信息义务的表现;“为订立、履行合同所必需”指向的是该义务为从给付义务的情形。尽管个人信息处理与基础合同相互独立,撤回同意仍可能导致合同的变更或解除。

There is a difference between the right of withdrawal of consent and the withdrawal and revocation of an expression of intent in terms of the object of exercise and the retroactive effect, and the difference is essentially a dispute over the nature of the withdrawal of consent. In terms of the conditions for exercising it, the right of withdrawal of consent faces the problems of unclear scope of subjects and blurred boundaries with statutory permission. As far as the applicable objects are concerned, since the withdrawal of consent is in line with the characteristics of “pure benefit” and “appropriate to age and intelligence”, minors over the age of 8 should not be subject to the guardian consent withdrawal model.Restrictions are imposed on the withdrawal of consent by an adult with incapacity for a substitute consent.In the case of the relationship between consent to withdraw and statutory permission, one or the other must apply when they coexist. When it comes to contractual transactions, consent is a manifestation of the personal data subjective performance of the obligation to provide personal information;“Necessary for the conclusion and performance of a contract” refers to a situation where the obligation is a subordinate payment obligation. Although the processing of personal information is separate from the underlying contract,the withdrawal of consent may result in a variation or termination of the contract.