Professional Interpretation

Abstract: The classification draft of civil code was deliberated at the Fifth Meeting of the 13th Standing Committee of the National People’s Congress for the first time on March 11, 2018. The six compilation systems were used in the draft, and it also meant the formal formation of legislation style of Chinese characteristic civil code. Wherein, the right of personality and tort liability were also independently compiled. In order to preferably cope with the new challenge brought to the production and life of the masses under the background of Internet age, the draft of right of personality compilation and draft of tort liability compilation of the civil code were deliberated respectively in the 13th Standing Committee of the National People’s Congress for three times on August 22, 2019. These two legal drafts which were related to the vital interests of the public continued to be modified for many times in the third copy editing, and maintained the public interests from the angle of responding to social concern. 

I. The third copy editing of draft of right of personality compilation of civil code 

(I) Further strengthen the protection of personal information 

With the development of information technology, the personal information were frequently revealed. Chaoyang District People’s Court of Beijing tried the case that the staffs of “zhaopin.com” took part in reselling the personal information of users for the second time on July 5, 2019. More than 160,000 resumes of citizens were involved in the case, and the average price for each resume sold on the Internet was RMB 5. Actually, the fact that such a famous recruitment website has revealed the personal resume information of users twice for three years was worried by the people. In addition, the facts that “mobile phone number of Wang Yibo was revealed”; “the residence information and flight information of Wang Jiaer were revealed”, etc. concerned recently, have brought huge trouble to the parties as the public figure, but also made us think over how to protect our personal information from being revealed again. 

At present, the laws for protecting personal information of citizens in China only generally stipulate that “if any organization and individual need to acquire the others’ personal information, they shall obtain them by law and ensure the information safety, but cannot illegally collect, use, process or transmit others’ personal information, and shall not illegally buy or sell, provide or publicize them” in Article 111 of the General Rules of the Civil Law. The specific requirement for protecting the personal information of citizens and right of personal information subject are also only stipulated in the Decision of the Standing Committee of the National People's Congress on Strengthening Information Protection on Networks, Provisions on Protection of Personal Information of Telecommunications and Internet Users, Cybersecurity Law and other laws and regulations. 

In the third copy editing of draft, the “E-mail address” and “track information” of the natural person are included into the scope of personal information, and it is stipulated that the personal information includes the name, date of birth, identity card number, biological identifying information, address, telephone number, E-mail address and track information of the natural person, so as to further strengthen the protection of personal information. In addition, in the third copy editing of draft, “using” personal information is modified to “processing” personal information, and the following provisions are added: The processing of personal information includes the use, processing, transmission, provision and publicity of personal information. Some members said that with the popularization of the smartphone, the permission of some application software APPs was obviously beyond the boundary; the problems, such as random violation of privacy of users and data frequently occurred, and have become the hardest hit of personal information disclosure, causing the public worry for information safety. In many cases, the scope of personal information collected by this APP software was too large and unnecessary, and was not matched with the function of these software and service provided. 

(II) Expand the definition of right of privacy 

The social problems generated by these cases, such as being photographed in the hotel and dressing room also sounded the alarm for the legislators in China to strengthen the protection for right of privacy of citizens. Article 2 of Tort Liability Law stipulates that the infringer shall bear the liability for tort in case of the behavior of infringement on right of privacy, but the right of privacy is not defined in Chinese civil code at present; the protection of right of privacy is only to indirectly protect the right of privacy of citizens through judicial interpretation and protecting right of reputation or maintaining public order and good custom, and the cases which infringe on the personal right of privacy frequently occur, and also prove that the method for indirect protection of right of privacy is limited. 

It is stipulated in Paragraph 2 of Article 811 of the Draft of Right of Personality Compilation of the Civil Code (Second Copy Editing) issued on April 26, 2019 that: “Privacy mentioned in the Code means private space, private activities, private information, etc.”, providing a clear definition of “Privacy”. However, some members of the standing committee, local authorities, departments and expert scholars suggested that the definition of privacy shall be further studied and revised and the characteristic of “Unwillingness to be known by others” was highlighted. The Third Copy Editing of Right of Personality Compilation is adopted, and it is stipulated that the definition of privacy in Paragraph 2 of Article 811 is revised as “the private space, private activities, private information, etc. that natural persons are unwilling to disclose to others”; And the provision that any organizations or individuals shall not search, enter, spy on or photograph others’ hotel rooms and other private spaces is added. The scope of the definition of the privacy right is further expanded. WANG Cheng, the professor of the Law School of Peking University, said that the restriction of “that natural persons are unwilling to disclose to others” was added in the definition of “privacy”, expanding the scope of definition of privacy and adding the subjectivity and flexibility of judgement, which meant that the boundary between protection of rights and the freedom to act shall be judged in different occasions and cases. 

II. The Third Copy Editing of Draft of Tort Liability Compilation of the Civil Code 

(I) Perfect the rules of “assumption of risks” 

For the rules of “assumption of risks”, the applicable scope of the rules for restriction on the third copy editing of draft is “recreational and sports activities with certain risks”, and it shall be specified how the education institutions to assume liabilities during organization of such activities. The rules of “assumption of risks” are stipulated in Paragraph 1 of Article 954 of the Second Copy Editing of Draft of Tort Liability Compilation of the Civil Code: The persons who suffer from damage after voluntarily participation in hazardous activities shall not request others to bear liability for tort, except for the situation that such damage is caused by their intentional or gross negligence; The liability of the activity organizer shall be subject to the provisions on liability for safety guarantee. 

In the Third Copy Editing of Draft of Tort Liability Compilation of the Civil Code, the rules of “assumption of risks” are revised: First, the persons who suffer from damage due to the behaviors of other participants after voluntarily participating in the recreational and sports activities with certain risks shall not request other participants to assume the liability for tort, except for the situation that such damage is caused by intentional or gross negligence of other participants. Second, if the activity organizer is a school or other education institution, the provisions on relevant liabilities of school and other education institutions for students suffering personal damage shall prevail. 

(II) Find the “source” for high toss act 

Today, with the rapid development of urbanization, there are many high-rise buildings and high toss acts occurring frequently. In 2018, a three-month-old baby girl in Dongguan, Guangdong was smashed by an apple falling from high altitude and thus lost all of her right brain functions. This is a very sad tragedy. But the biggest problem in such cases is “difficulty to claim for responsibilities”. On the 22nd day, the Draft of Tort Liability Compilation of the Civil Code submitted to the 13th Standing Committee of the National People’s Congress for three deliberations made relevant provisions on “the high toss acts”. 

First, the draft stipulates that “throwing objects from the buildings is prohibited”; Second, it is stipulated that “if the objects thrown or falling from the buildings cause damage to others, the infringer shall bear the liability for tort according to law”; Third, it is stipulated that “if any high toss act causes damage to others, the relevant authorities shall conduct timely investigation according to law, find out the responsible person and indicate that only when the specific infringer cannot be determined through investigation, the provision that the potential building user who may cause such damage shall make compensation will prevail”; Fourth, regarding the problem of difficult identification of infringer in judicial practice causing “compensation by all building users for one-person’s high toss act”, the third copy editing of draft stipulates that: “Relevant authorities shall conduct timely investigation according to law, find out the responsible person and only when the specific infringer cannot be determined through investigation, the provision that the potential building user who may cause such damage shall make compensation will prevail; if the infringer is found out after the potential building user makes compensation, the user has the right to claim compensation from the infringer”; Fifth, the draft stipulates that “the building manager shall take necessary safety precautions to prevent the occurrence of such circumstance, otherwise, it shall bear the liability for tort for non-performance of safety guarantee obligations according to law”. XIONG Wenzhao, the vice chairman of Legislative Research Society of China Law Society, said: “The provision on clear ban on throwing will more facilitate judicial practice and operation. The provision of the third copy editing of draft on the safety guarantee obligations of the building manager is helpful to solve the problem of high toss act from the root, and instead of setting the legislative objective for the aftermath of danger, it is better to take preventive measures and strengthen the safety guarantee before the occurrence of high toss act”. 

(III) The expenses for recalling of defective products shall be paid by the producer and seller. 

Who shall bear the expenses required for recalling of defective products? The Third Copy Editing of Draft of Tort Liability Compilation of the Civil Code has specified this focus problem: Producer and seller. Previously, the Second Copy Editing of Draft of Tort Liability Compilation of the Civil Code made provisions on the liability for producer and seller recalling the defective products: If any defects are found after the products are launched for circulation, the producer and seller shall take remedial measures timely, such as stopping selling, warning and recalling. If the damage worsens due to failure to timely take remedial measures or ineffective remedial measures, they shall bear the liability for tort for such worsened damage. 

The third copy editing of draft is added with a provision based on the second Copy Editing that: If the recalling measure is taken according to the preceding paragraph, the producer and seller shall pay the expenses incurred by the infringed. “The defective automobile products are recalled frequently, and there are many cases that the customers claim for the traffic and transportation fees incurred during the automobile recalling in daily life.” WU Qijun, the director of Civil Special Committee of Chongqing Bar Association, said that specifying the “payer” was to further confirm the relevant provisions in the law on the protection of rights and interests of the consumers, and the applicable scope of the laws is extended to the infringed from the customers. 

III. Conclusions 

Each draft of the Civil Code subdivision has been submitted to the fifth meeting of the standing committee of the 13th National People’s Congress for deliberation, which was an important step for compilation of civil code and also an event in civil legislation of China. “Debate” is made for deliberation of Draft of Right of Personality Compilation and Draft of Tort Liability Compilation of the Civil Code in China with “resonance”. The Third Copy Editing draft was finally passed this time, which truly reflected the social public hotspots, perfected the legislation of the personality rights and liability for tort and was helpful to safeguard the vital legal rights and interests of the public. However, for the mutual benefits and connection between all subdivisions of the civil code, further provisions and improvement shall be made, and we believe that more perfect provisions will be formulated in the final civil code.