个人信息处理中的不当得利返还规制

    Legal Adjustment Methods for Return of Unjust Enrichment in the Processing of Personal Information

    • 摘要: 在个人信息处理过程中,对于欠缺法律关系的财产移转,需不当得利规则介入以实现兜底救济,其中如何处理“得利返还”是核心问题。得利返还的客体一般包括信息处理者的原得利客体及其用益、得利的代位物;间接获利依信息财产利益生成路径解释,经因果关系远近判断后,确有必要返还的,可经扩张解释《民法典》第985条中“取得的利益”而被纳入返还客体。个人信息经算法可识别的,应适用“删除”的原物返还等同方式,其实质为排除得利人对个人信息利益的支配控制;无法原物返还的,应予价值偿还,依善意判断适用约定对价优先客观市价。得利返还数额范围需依劳动配置权益理论,扣减信息处理者的“劳动成本投入”和“其他劳动要素投入(个人技能、智慧等)”价值;且裁判者需在个案中综合运用“利益衡量”与“法经济分析”两个工具,以此妥当确定得利返还数额范围,避免过度威慑。

       

      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.

       

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