摘要
我国《个人信息保护法》第58条在世界范围内首次引入了超大互联网平台中负责监督个人信息保护情况的独立机构,是真正意义上的中国创新。从法律定位来说,其本质上是行政法上的元规制机构,是互联网时代私人参与公共任务的一种新形式。尽管监督个人信息保护情况的公共任务交给了私人的独立监督机构,但并不意味着其可以摆脱公法的约束。具体来说,独立监督机构应受到民主原则、正当程序原则、合作原则、基本权利保护原则、辅助性原则和效能原则等公法原则的约束,这在未来制度的进一步细化中均应体现。除此之外,政府强制平台承担公法义务构成对平台企业营业自由、平等权和公平竞争权之限制,也应受到公法规范。该制度在优化平台治理生态方面具有巨大的潜力,应用范围可扩大到信息管理、信用治理、交易监管和科技伦理审查等诸多平台监管领域。
Article 58 of Personal Information Protection Law in China introduces an independent agency responsible for supervising the protection of personal information on a super large Internet platform for the first time in the world,which is a real Chinese innovation.Born under the background of the recent strengthening of economic supervision of Internet platforms,this innovation is not groundless,but is based on the correct establishment of the concept of subject responsibility for platforms in China.The emergence of many private regulatory institutions inside platform enterprises has also provided them with certain extraterritorial inspiration and experience.However,due to the ambiguity of this clause,there has been considerable controversy over how to implement it,and it has not been implemented in practice.Many people think that,from the perspective of corporate governance,the independent agency regulated in Article 58 should be regarded as an independent director.This paper argues that the independent agency regulated in Article 58 is a meta-regulatory agency in administrative law,which is a new form of private participation in public tasks in the Internet age and fully embodies the concept of cooperative governance.Compared with traditional command-and-control supervision,meta-regulation has many advantages,and it is even the main form of regulation in the Internet age.However,like traditional regulatory forms,meta-regulation also faces the dilemma of regulatory effectiveness and rights protection.On the one hand,meta-regulation often introduces private subjects to achieve public tasks.Private subjects do not have sufficient motivation to complete them,and neutrality and independence are difficult to guarantee,which greatly detracts from regulatory effectiveness.On the other hand,traditional public law only addresses the protection of citizens’rights in the government’s management activities,but in the form of meta-regulation,private subjects are engaged in management activities,and how to protect citizens’rights in this process has become a difficult problem.Based on this,the academic circle has conducted in-depth research on how to ensure regulatory effectiveness and rights protection in the form of meta-regulation.This paper argues that,as a meta-regulatory agency,an independent supervisory agency should follow the principle of meta-regulation and meet the dual requirements of regulatory effectiveness and rights protection.This means that although the public task of supervising the protection of personal information is handed over to a private independent agency,it does not mean that such an agency can escape the constraints of public law.Specifically,independent agencies should be bound by public law principles such as the principles of democracy,due process,cooperation,fundamental rights protection,subsidiarity and effectiveness,which should be reflected in the further refinement of the system in the future.In addition,the government’s forcing platforms to undertake public law obligations constitutes a restriction on business freedom,equality rights and fair competition rights of platform companies,and should also be regulated by public law.Specifically,in the identification of super large Internet platforms,the requirements of legal,democratic and scientific decision-making should be followed,the use of public hearings,expert demonstrations and public participation should be considered,and the principle of due process should be followed.In order to achieve regulatory effectiveness and meet the principle of efficiency and neutrality,independence of power,independence of economy and independence of personnel should be guaranteed.The regulatory priority of independent agencies should be recognized.Generally administrative agencies should respect the decisions of independent agencies,because this form of meta-regulation is mandated by law,and the authority of independent agencies to supervise the protection of personal information is authorized by law and should be respected by administrative agencies.Executive agencies can step in only when there is a violation or inaction by an independent agency.This system also has great potential for optimizing the platform governance ecology,and its application scope can be expanded to many platform supervision fields such as information management,credit governance,transaction supervision and even labor protection.In the future,it is possible to further expand its functions and establish an independent agency fully responsible for platform governance.At present,this trend has already emerged.Paragraph 3 of Article 20 of Regulations on Protection of Minors on the Internet(Consultative Draft)issued by Cyberspace Administration of China on March 14,2022 stipulates independent agencies to supervise online protection of minors.Therefore,stipulation of the independent agencies in Article 58 can also be regarded as a legal experiment and a pioneering system for platform governance through private governance agencies.It is conceivable that the operation of this system in our country faces many challenges.Only through continuous trials and errors can it be perfected and its functions be expanded.
作者
刘绍宇
LIU Shaoyu(Institute of Law,Chinese Academy of Social Sciences,Beijing 100732,China)
出处
《重庆理工大学学报（社会科学）》
2023年第5期127-140,共14页
Journal of Chongqing University of Technology（Social Science）
基金
国家社会科学基金重大项目“行政诉讼类型制度的构建研究”(19ZDA163)
中国博士后科学基金第14批特别资助项目“论私法主体的公法管控:以网络平台为考察对象”(2021T140727)。
关键词
超级互联网平台
独立监督机构
个人信息保护
元规制
super Internet platform
independent supervisory agency
personal information protection
meta-regulation
作者简介
刘绍宇,博士,博士后,主要从事行政法学、网络法学研究。
