The Civil Code And The Private Law Protection Of Personal Information

• Author: Xu Duoye
• Pages: 188-199

188 TSINGHUA CHINA LAW REVIEW [Vol. 13:187

THE CIVIL CODE AND THE PRIVATE LAW PROTECTION OF

PERSONAL INFORMATION

Xu Duoye

I. INTRODUCTION

With the development of the digital economy, personal information

protection has become an increasingly important issue in China and legislators

have responded to this trend. The year 2020 witnessed a great leap in China’s

legislation on personal information protection. In May, China issued the Civil

Code of the People’s Republic of China1 (the “Civil Code”), which is one of

the most significant events in China’s legal history. In the Civil Code, one of

the major highlights is the rules for personal information protection. Five

months later, the Request for Public Comments on the Personal Information

Protection Bill2 (the “Personal Information Protection Bill”) was released.

Previously, China’s personal information protection rules scattered in more

than 30 domain-specific laws (and affiliated judicial interpretations) and

administrative regulations, each confined to their respective domains, such as

consumer protection and cybersecurity.3 Most of the laws and administrative

regulations prescribe administrative liability but only a few provide private law

remedies for victims.4 The Civil Code provides a general structure for personal

information protection, including the definition and scope of personal

information, information subject’s rights, and processor’s obligations.

Although the personal information protection rules of the Civil Code inherit the

main structure from the rules on the same issue in Cybersecurity Law of the

People’s Republic of China5 (the “Cybersecurity Law”), the legislators has

made important developments. Based on the Civil Code, the Personal

Information Protection Bill will further develop private law protection of

personal information.

In this note, Part II reviews China’s personal information protection

mechanism before the Civil Code. Part III introduces the personal information

protection under the Civil Code, with an emphasis on the new developments.

Part IV discusses the ideal functions of private law in personal information

1 Min Fadian (民法典) [Civil Code] (promulgated by the Nat’l People’s Cong., May 28, 2020, effective

Jan. 1, 2021) (Chinalawinfo).

2 Geren Xinxi Baohu Fa (Cao’an) Zhengqiu Yijian (个人信息保护法(草案)征求意见) [Request for

Public Comments on the Personal Information Protection Bill] (promulgated by the Standing Comm. Nat’l

People’s Cong., Oct. 21, 2020) (Chinalawinfo).

3 Wang Xiuzhe (王秀哲), Woguo Geren Xinxi Lifa Baohu Shizheng Yanjiu (我国个人信息立法保护实

证研究) [An Empirical Study on China’s Personal Information Protection Legislation], DONGFANG FAXUE

(东方法学) [ORIENTAL LAW], no. 3, 2016, at 58.

4 Id.

5 Wangluo Anquan Fa (网络安全法) [Cybersecurity Law] (promulgated by the Standing Comm. Nat’l

People’s Cong., Nov. 7, 2016, effective Jan. 6, 2017) (Chinalawinfo).