Abstract:
In the process of processing personal information, for the transfer of property without legal relationship, it is necessary to intervene in the rules of unjust enrichment in order to achieve the basic remedy, in which how to deal with the “return of profits” is the core issue. The objects of the return of profits generally include the original object of profits of the information processor and its benefits, and the subrogation of profits. Whether indirect profits need to be returned depends on the process of generating the information property benefits, supplemented by a judgment of the proximity of the causal relationship. Finally, by expanding the interpretation of acquired benefits in Article 985 of the Civil Code , indirect profits can be included among the objects of return. When personal information can be identified by algorithms, the law should apply the “deletion method”, which is equivalent to the return of the original object. The essence of deletion is to exclude the beneficiary from controlling the interests in personal information. If it is not possible to return to the original, the value should be reimbursed. In this case, the criterion that the agreed consideration takes precedence over the objective market price shall be applied on the basis of a good faith judgement. The scope of the amount of the return of profits shall be determined in accordance with the theory of labour allocation rights and interests, in which case the value of the information processor’s “input of labour costs” and “input of other factors of labour (personal skills, intelligence, etc.)” shall be deducted in advance. The adjudicator should apply a combination of the tools of “the Measurement of Interests” and “the Economic Analysis of Law” in each case to properly determine the scope of the amount of the return of benefits and to avoid excessive deterrence.