| The rule of informed consent is a vital rule in the information protection system,which means that consent must be obtained for processing personal information.However,the rapid development of information makes it difficult for the rule to apply at this time,especially for the processing of personal information that has been made public.The rule not only fails to guarantee the security of information,but also prevents the use.Therefore,the Civil Code and the Personal Information Protection Law established a new rule---the proper processing rule.Before the codes coming out,criminal scholars argue that the processing of public personal information should be authorized,relied on Article 3(2)of the Interpretation,otherwise the behavior is illegal.Scholars interpreted the "legally collected personal information" in this article as the public personal information,and thus established the informed consent rule in the field of criminal law for the processing of public personal information,also known as the secondary authorization rule.However,with the advent of the two codes,based on the unity of the legal order,it is necessary for the criminal law to change the rules with the predecessor law and establish the proper processing rule in criminal law for the public personal information: if the information processor handles the information without authorization,it is legal if the process is proper.On the contrary,it is illegal and may constitute a crime.There are three types of criminal acts including acquisition,provision and sale,according to Article 253-1 of the Criminal Law.The act of sale can be included in the act of provision.As it is difficult to prove that the act of acquisition is improper to exclude by the proper processing rule,the discussion on the processing of public personal information should focus on the act of provision.There are two interpretations of the proper processing rule in civil law: the model of proper use and the model of exempting consent.The former is appropriate for the construction of the proper processing rule in criminal law.For different types of disclosed personal information,there are also differences in the understanding of the "purposefulness" of the processing behavior: the "purposefulness" of self-disclosed personal information is limited to the reasonable expectations of the owner,while the "purposefulness" of compulsorily disclosed personal information is not limited to the the purpose of the initial disclosure,and complete consistency is not required. |
