빅데이터 시대 중국 개인정보보호에서의 사전동의에 관한 예비적 고찰

이영봉(Li, Yingfeng) 4차산업혁명융합법학회 2021 4차산업혁명 법과 정책 Vol.3 No.-

본고는 중국 개인정보 관련 입법에서의 개인정보의 개념 및 사전동의에 관한 규정을 소개하였다. 개인정보(권)는 사법과 공법의 공동보호를 받는 법익으로서 사법영역의 전속 권리가 아니라고 이해하는 것이 바람직하다. 사전동의의 규칙은 실제 적용과정에서 정보처리자 고지의무의 형해화, 정보주체 동의의 선택공간의 압축, 동의에 수반하는 리스크의 예측곤란, 고지와 동의가 커버할 수 있는 정보처리범위의 제한 등 곤경에 처해 있으므로 “사전동의 제한론”이 학계의 주류를 이루고 있고 이는 또한 본고의 입장이다. 입법자는 “영역이론”에 근거하여 사전동의의 구체적인 적용규칙을 설정함으로써 상기 적용곤란의 완화를 도모하는 것이 마땅하다고 본다. 동의에 대한 강한 확보가 개인정보에 대한 강한 보호를 의미하는 것이 아니므로 사전동의의 규칙의 적용제한이 개인정보 보호등급의 하락으로 직결되는 것은 아니다. 사법만으로는 개인정보를 효과적으로 보호하기 어렵다는 점은 이미 사법실무에서 충분히 증명된 바이므로 개인정보보호의 법률체계는 행정법, 형법 등 공법의 역할을 중시하여야 한다. 공법적 시각에서 보면 개인정보권은 일종의 “보호받는 권리”로 해석할 수 있고 따라서 개인정보보호의 목적은 사적 권리의 확인이 아니라 리스크의 통제라는 결론에 도달할 수 있다. 이런 시각과 사고방식의 전환은 개인정보보호 법률체계에서 사전동의의 위치를 재확인하고 사전동의에 대한 제한을 거부감 없이 받아들임으로써 개인정보의 보호와 이용 이 두 가지 가치와 이익사이의 동적 조화를 꾀하는데 도움이 될 수 있다고 생각된다. This article introduces the concept of personal information and the notification and consent rules in China s personal information protection legislation. Personal information (rights) should be understood as a legal interest protected by both private law and public law, rather than a right exclusively belonging to the field of private law. In practice, the notification and consent rules have encountered the dilemmas including that the information processor’s obligation of notification is blurred; the information subject has few options; the information subject is difficult to assess the risk of consent; and the actual coverage of the notification and consent is limited. Base on this, the limited notification and consent rules have been supported by majority scholars, which is also the view of this paper. According to “spheres theory”, legislators could design different specific applicable standards for the notification and consent rules to solve the difficulties encountered by the rules in practice. Limiting the application of the notification and consent rules won’t lead to a reduction of personal information protection, because strong consent doesn’t mean strong protection. It is fully proved in practice that personal information is difficult to effectively protect only by private law. The personal information protection legal system should take the role of administrative law, criminal law and other public laws seriously. From the perspective of public law, the personal information rights should be understood as a kind of “protected rights”, that is, the purpose of protecting personal information is not to confirm rights, but to avoid risks. The change of perspective and thinking helps us to clarify the position of the notification and consent rules in the personal information protection legal system, and also makes us more comfortable to accept the limitations on it, so as to realize the dynamic balance between the personal information protection and the utilization of personal information.

중국 뇌물범죄에서의 “뇌물”범위의 재정립 및 관련 실무문제에 관한 검토

이영봉 ( Li Yingfeng ) 단국대학교 법학연구소 2021 법학논총 Vol.45 No.2

Since the 18th National Congress of the Communist Party in China, anti-corruption has been raised to an unprecedented height, especially with the promulgation of the criminal law amendment(9) and the latest judicial interpretation of corruption and bribery criminal cases, the academic circles have had a heated discussion on the issue of anti-corruption. At the same time, various circles of society, especially the public, are paying more and more attention to anti-corruption issues. Bribery crime is a typical form of corruption, and also the most important corruption type in China, the scope of “bribes” is the primary factor to determine the limits of bribery crime, also an important measure whether a country or region can effectively deal with various bribery or not. With the development of economy and society, the forms of corruption crime or bribery crime are also being developed, so how to define the scope of bribes is not only an old problem, but also a new one in China. This paper intends to put forward its own opinions and thinking on this issue, in order to respond rationally and calmly to the needs of the times and public opinion in theory. This paper first introduces and evaluates the differences and theoretical propositions on the scope of bribes between extraterritorial criminal legislations, international conventions and criminal law theories, which can be generalized into three types: The first is narrow sense: bribes mainly refer to property, but also includes property interests; The second is medium sense: bribes refer to property, property interests and some other specific interests; The third is broad sense: bribes refer to property, property interests and other interests. After the founding of the People’s Republic of China, the definition of the bribes in China’s criminal legislation has basically remained unchanged, that is, bribes refer to property. This kind of legislation can be called the narrowest sense (however, it should be noted that the relevant judicial interpretations have incorporated property interests into the scope of property). Although this kind of legislation is supported by a small part in the theoretical circle (“property theory”), the current law obviously inappropriately narrows the scope of bribes, and can’t meet the needs of judicial practice, also don’t in line with the trend of combating bribery crimes in the international community. Therefore, expanding the scope of bribes has basically become a consensus in theoretical circle, the question is to what extent. In this regard, there are several theories such as “property interests”, “interests”, “property interests and some non-property interests” in China theoretical circles. Based on critical analysis of the above theories, this paper argues that the scope of bribes needs to be expanded, but can’t be unrestricted. It should be defined as: property and various interests that can be measured its direct monetary value. In other words, when expanding the scope of bribes, we should not deliberately distinguish property interests and non-property interests, as long as the value of certain interests can be measured by monetary amount, they should be included in the scope of bribes. Based on the definition of bribes in this paper, we suggest that, except for specific circumstances, “sexual bribery” (sexual entertainment) should not be criminalized, and “power transaction” behavior also shouldn’t be criminalized. Not punishing these two behaviors by bribery crime law won’t lead to indulgence of crime.

“후기노동교양시대”에서의 중국 경범죄제도의 수립에 관한 성찰

이영봉 ( Li Yingfeng ) 단국대학교 법학연구소 2018 법학논총 Vol.42 No.2

There is no legal classification of misdemeanor and felony in Chinese Criminal Code, and there is no other misdemeanor law outside the Criminal Code. The Criminal Code of China basically adopts the criminal establishment mode of the pattern that the offenses have the quality and quantity at the same time, therefore, if the majority of offenses cannot meet the requirement of constituting crime in quantity, it will be excluded from the crime field and be punished only by administrative punishment. In the relevant administrative penalty regulations, the Law on Penalties for Administration of Public Security is more applicable, which is similar to the Law of Punishment of Misdemeanor in South Korea, but it belongs to administrative law rather than criminal law, that is, the offenses stipulated in the law are administrative malfeasance, not the crime. All along China’s criminal sanction system is composed of three poles: penalties for administration of public security-re-education through labor-criminal punishment, among which the objects of reeducation through labor are more complex, but generally they can be summed up as petty misdemeanors and serious administrative violations. From the formal perspective, the system of reeducation through Labor can play a role in linking criminal punishment with administrative punishment, and reconciling the field of criminalization and decriminalization, but because of its many problems, the system was abolished in 2013. After the abolition of the re-education through labor, in order to make up the gap of punishment system, the ideas of constructing misdemeanor system became quite active. One of them advocated the enactment of misdemeanor law beyond the criminal code, which regulates the objects including part of the re-education through labor system’ objects, part of the Law on Penalties for Administration of Public Security’ objects and other offenses which need to be defined as misdemeanors, and prescribed a very simple trial procedure so that petty misdemeanors can also be heard by the court, this is a more powerful idea theoretically. However, considering the modesty of the criminal law and the China’s traditional legal culture, it is very rare in the Chinese academia to advocate the petty misdemeanor punishment being applicable for the public defecation, littering, noise nuisance, posting advertisement and so on, while which is stipulated in the Law of Punishment of Misdemeanor in South Korea. Despite the part of the academia’s opinion of introducing the misdemeanor system, China’s legislature has been cautious about the misdemeanor law, fearing a sharp expansion of the criminal circle and a sharp increase in the number of people with criminal records. However, with the fact that drunken driving into penalty has received good preventive effect now, the legislature’s attitude is likely to change, that is, from the standpoint of the legislature, through misdemeanor, shaping the national normative awareness is not unacceptable. This article suggests that the establishment of misdemeanor system conforms to the general direction of the development of the rule of law, but at present China doesn’t have the conditions to systematically construct the system of misdemeanor at all, now as far as possible within the existing institutional framework or not to subvert the existing system, through the establishment and improvement of relevant systems and regulations, China should gradually promote the construction of misdemeanor system.