|
Abstract The normative basis for compensation for damages resulting from the infringement of personal information rights and interests under the current legal order in China can be divided into two parts: one part includes the elements for the establishment of liability stipulated in article 69 (1) of the Personal Information Protection Act and the method for determining the amount of compensation for property damages stipulated in the second paragraph of the same article. This part applies to acts of processing of personal information other than by a natural person who handles personal information in connection with his or her personal or family affairs;The other part includes the elements for the establishment of liability regulated in the Article 1165 (1) of the Civil Code and the determination of property damages and moral damages regulated in the Articles 1182 and 1183 (1) of the Civil Code, respectively, of which the establishment of liability and the determination of compensation for property damage are mainly applicable to the handling of personal information by a natural person in his/her personal or family affairs, while the method for determining compensation for moral damage is applicable to all issues of compensation for moral damage resulting from infringement of personal information. The key distinction between these two parts of the damages regulation is the issue of proving fault in the establishment of tort liability. Among them, Article 69 (1) of the Personal Information Protection Law adopts the presumed fault because the processor and the person who has the right to personal information are usually in an unequal status in fact, and the adoption of the presumed fault can balance the unequal status and protect the rights and interests of personal information more adequately.The victim’s burden of proof in the context of ordinary fault under Article 1165 (1) of the Civil Code applies primarily to infringements of personal information between natural persons, and does not usually involve the dominant position of the processor in relation to the person entitled to the personal information.
The purpose and function of property damages and moral damages in the current law on damages are not the same:the former is mainly to fill the damage in order to restore the status quo as it is, while the latter is mainly to punish the perpetrator in order to comfort the victim. Based on this, the two compensation rules in the specific construction and evaluation method should also be differentiated, in order to adapt to the purpose and function of the two kinds of damages. However, from the point of view of specific application, there is a convergence between compensation for property losses and compensation for moral damages in terms of the factors to be taken into account in determining whether compensation should be awarded and the method of determining the amount of specific compensation, which is contrary to the original intention of the current law to differentiate between the two types of rules on compensation in order to realize the different legislative purposes. This is because, on the one hand, because the method of determining compensation for property damage in practice, i.e., the actual loss suffered by the victim and the benefit gained by the tortfeasor are difficult to prove, the victim is forced to turn to the court’s discretion as a remedial provision. In practice, the court’s discretionary method is also mainly used by the court to weigh the interests of individual cases with specific considerations in order to make a comprehensive determination, which is in fact not different from the court’s comprehensive determination method in the determination of liability for moral damages. On the other hand, since the factors taken into consideration stipulated in Article 998 of the Civil Code do not distinguish whether they are applicable to the determination of property damage or moral damage, they are usually used in practice for the determination of various kinds of damages without distinguishing their respective normative roles, which leads to the fact that compensation for property damage and moral damage, which have different functions, have the same factors taken into consideration for the determination of specific damages.
With regard to the convergence of compensation for property damage and compensation for moral damage, the problem should be solved from the perspective of the function and purpose of compensation for damage, and on the basis of recognizing the convergence of the methods of determining compensation and the factors to be taken into account. Specifically, the factors taken into consideration stipulated in Article 998 of the Civil Code can be differentiated into two types, namely, the damage-filling type and the comforting type, based on the closeness of the factors to the functions of various damages, so that damage-filling type can be taken into account in determining the liability for property damages, and the comforting type can be taken into account in determining the liability for moral damages to solve the problem of blurring the boundaries between property damages and moral damages. Furthermore, in light of the role of the careers of the perpetrator and the victim in the determination of liability for damages to non-material personality rights, as stipulated in Article 998 of the Civil Code, it is possible to combine the compensation for property losses and moral damages in the case of infringement of personal information rights and interests with the careers of the perpetrator and the victim, so as to avoid all-or-nothing results.
|
|
Published: 06 February 2025
|
|
|
|
