No.183

The Standing Committee of the National Congress recently adopted the Personal Data Protection Law. Foreign media described it as the world’s strictest privacy law perhaps because Chinese internet companies do not protect personal data well enough. Lawyer You Yunting would like to discuss connections between this law and internet companies...
2021-12-27 16:58:28

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Are Internet Companies Afraid of Personal Data Protection Law?

By You Yunting

The Standing Committee of the National Congress recently adopted the Personal Data Protection Law. Foreign media described it as the world’s strictest privacy law perhaps because Chinese internet companies do not protect personal data well enough. I would like to discuss connections between this law and internet companies.................More


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Impact of “Early Drug Patent Dispute Resolution Mechanism” on Pharmaceutical Businesses

By Gao Shaoyi and Zhang Qianlin

With the Patent Law (Amendment 2020), Regulations on Several Issues Connected with Applicable Laws on Hearings of Civil Cases Relating to Patent Rights in Drug Registration Applications, Early Drug Patent Dispute Resolution Mechanism Implementation Rules (Experimental), Administrative Decision Making Rules of Early Drug Patent Dispute Resolution Mechanism and other laws, rules and regulations being officially taken into action, the Chinese early drug patent dispute resolution mechanism (“drug linkage system”) continues developing with significant impact on pharmaceutical businesses. This article is an analysis of this mechanism and its impact on pharmaceutical businesses.....................More


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1.Personal Data Protection Law of the People’s Republic of China

Promulgated by the Standing Committee of National Congress
Promulgation date: 20 August 2021
Implementation date: 1 November 2021
The following is main contents of this law consisting of eight chapters and seventy-four articles.(I) Application scope

Definitions of terms: personal data mean all data related to recognized or recognizable naturalpeople, recorded in electronic or other forms; personal data processing includes collection,storage, use, processing, transfer, provision and disclosure of personal data.

(II) Improvements of personal data processing rules

Principles that should be followed to process personal data, under which personal data should beprocessed legally and appropriately and for definite purposes. A set of personal data processingrules based on “notice-approval”, requiring advance full notice and revocable individual approval;specific requirements that should be met to process different types of and in different stages ofprocessing personal data, including requirements for processing personal data jointly or bycommission, providing or disclosing personal data to third parties, using personal data inautomatic decision making process and processing personal data available to the public; A sectionof stricter restrictions on processing sensitive personal data, requiring specific purpose, fullnecessity and separate individual or written agreement.

(III) Improvements of rules on providing personal data overseas

People operating key information infrastructure or processing personal data that reach the lowerlimit set by the national network and information authority should pass security evaluation of personal data that need to be provided overseas organized by the national network andinformation authority.

(IV) Rights of people whose personal data are processed and obligations of people processingpersonal data

People processing personal data are obligated to comply with rules and protect personal datasecurity and should formulate internal management rules and operational procedures accordingto related regulations, take appropriate security measures and designate a responsible person tosupervise personal data processing activities.

(V) Departments with personal data protection duties

Personal data protection covers various areas and is a duty of different departments. Based onwhat should be done to protect personal data, the draft clearly states the national network andinformation authority is responsible for planning and coordinating personal data protectioneffectively and the national network and information department and related departments of theState Council should perform their own job duties related to personal data protection andsupervision.

(Source: Website of the National Congress)

http://www.npc.gov.cn/npc/c30834/202108/5891377866c04fd78df8d76d9b76338e.shtml


2. Regulations on Several Issues Connected with Application of Laws to Hearings of Civil CasesConnected with Use of Face Recognition Technology to Process Personal Data

Promulgated by the Supreme People’s CourtPromulgation date: 28 July 2021Implementation date: 1 August 2021Document number: L.I.[2021] 15

The following is important parts of Regulations.

(I) Application scope

Article 1 of Regulations clearly defines the application scope. First, Regulations is applicable incivil cases arising from use of face recognition technology to process human face data betweenpeople with equal civil rights. Second, the application scope of Regulations covers peopleprocessing human face data by using face recognition technology or processing human face datagenerated by face recognition technology without using face recognition technology.

(II) Provisions relating to personality rights and responsibility for infringement

Articles 2 and 4 of Regulations clearly states that separate agreement of a natural person or theircustodian is required to process their face data; and breach of the separate agreement or directlyor indirectly forcing a natural person to agree to process their face data should be deemed asinfringement of their personality rights. Article 5 gives details of Article 1036 of Civil Code, clearlydescribing causes of exemption of liabilities for processing face data. Articles 6 through 9 relatesto burden of proof, allocation of responsibility for infringement between people processingpersonal data, property damage and application of personality right infringement injunctions.

(III) Replies to contract related issues

Articles 10 through 12 of Regulations deal with issues relating to real property managementservices, force of standard clauses and responsibility for breach of contract that attracts attentionof the general public. Article 11 provides that if a natural person requests for confirming theinvalidity of a standard clause pursuant to Article 497 of Civil Code, the court should allow it.Article 12 relates to natural people requesting people processing personal data be responsiblefor breach of contract and remove their face data.

(Source: SPC’s website)

http://www.court.gov.cn/fabu-xiangqing-315851.html


3. Interpretation of Several Issues Connected with Applicable Laws in Cases of Harboring and Covering for Criminals

Promulgated by the Supreme People’s Court and the Supreme People’s ProcuratoratePromulgation date: 9 August 2021
Implementation date: 11 August 2021
Document number: L.I. [2021] 16

Interpretation clearly provides that people who help a person who they know committed a crimeto escape and hide or offer the person a house or place to hide in, vehicles such as cars, ships andaircraft, means of communication such as a cellphone or money should be convicted of the crimeof harboring a criminal pursuant to Article 310.1 of Criminal Law. Interpretation notes that peoplewho offer a criminal a place to hide in or property for a purpose other than helping the criminalescape and hide should not be convicted of the crime of harboring a criminal and people who failto perform the statutory obligation to report when doing these acts should be legally transferredto a competent authority for administrative punishment.

Interpretation clearly defines criteria for convicting a person of the crime of harboring a criminaland describes three means of harboring a criminal that are often seen in legal practice, i.e.deliberately taking the place of a criminal before a legal authority, commonly known as“replacement”, deliberately giving a legal authority a false account or false evidence that acriminal didn’t commit the crime or what the criminal did was not a crime, and deliberatelyproviding a legal authority false evidence that the criminal should be given a less severe orreduced or exempted from punishment.

(Source: SPC’s website)

http://www.court.gov.cn/fabu-xiangqing-317081.html


4. Instructions on Strengthening Regulation of Market Access of Intelligent Connected Vehicles

Promulgated by the Ministry of Industry and Information TechnologyPromulgation date: 12 August 2021
Document number: MIIT T.Z.[2021] 103

Contents of Instructions: first, management scope and businesses’ responsibilities; second, dataand cyber security management ability increase; third, online software upgrading provisions;fourth, strengthened product management; fifth, full support measures. Regarding data andcyber security management ability increase, Instructions clearly states that businesses shouldestablish a good car data security management system, legally perform their obligation to protectdata security, classify data into different types and levels and strengthen protection of personaland important data. In addition, personal and important data collected and generated in Chinashould be stored in China according to relevant laws and regulations and pass cross-border datatransfer security evaluation to be provided overseas. 

(Source: MII’s website)

https://www.miit.gov.cn/zwgk/zcwj/wjfb/yj/art/2021/art_bf9a399907d94b8c9ac9f79f2045fe14.html


5. Civil Action Supervision Rules of People’s Procuratorates

Promulgated by the Supreme People’s ProcuratoratePromulgation date: 26 July 2021
Implementation date: 1 August 2021
The following is main contents of Rules.

(I) Criteria for applying for supervision and procedures that public prosecution authorities shouldfollow to accept supervision applications are clarified to ensure the entrance to the supervisionapplication channel is clear and in a good order.

(II) The range of cases where the supervision process can be started by authority is expandedappropriately to fully perform the duty of legal supervision.

(III) The case review and investigation work mechanism are improved to ensure cases are examined and supervised comprehensively and objectively

(IV) Standards and procedures for supervising valid decisions and mediation agreements areimproved to strengthen supervision of wrong decisions.

(V) Procedures for supervising illegal activities of judicial staff and illegal enforcement areimproved to make the supervision more practical.

(VI) The self-correction system for public prosecution authorities is improved to maintain legaljustice and authority.

The application basis is clarified to ensure the procedural basis cover the whole process.

 (Source:SPP’s website)

https://www.spp.gov.cn/spp/xwfbh/wsfbh/202108/t20210825_527624.shtml


6. Meeting Minutes on Strengthening Exchanges and Cooperation between Supreme People’sCourt and Hong Kong Special Administrative Region

Promulgated by the Supreme People’s CourtPromulgation date: 28 July 2021
The Parties agree as follows.

1. The Parties agree to study and improve links between legal rules and mechanisms of Chinesemainland and Hong Kong, especially in Guangdong-Hong Kong-Macao Greater Bay Area, activelyadvance work on mutual acceptance and bankruptcy support, explore moves to optimize mutualcommission on service of legal documents in civil and business cases, improve evidence collectionsupport rules, strengthen construction of inter-regional legal support mechanism with Chinesecharacteristics and give fuller legal support for integration and development of Chinese mainlandand Hong Kong.

2. The Parties agree to study and optimize the diversified dispute resolution mechanism agreed,co-established and shared with the Greater Bay Area, promote mediation and arbitration services,encourage legal professionals in Hong Kong to join the international business expert committeeof the Supreme People’s Court and act as special mediator and juror in court of Chinese mainland,strengthen cooperation in legal ascertainment and try to establish a legal research platform ofthe Greater Bay Area.

3. The Parties agree to encourage and advance exchanges, including regular visits, workerexchanges, internship and studies and training in legal support, with the Hong Kong and Macaoaffairs office of the State Council coordinating all these activities; and arrange training on legalpractice in Chinese mainland for legal professionals in Hong Kong who passed the bar exam ofthe Greater Bay Area.

The Parties agree to encourage use of information technology in legal areas and try to strengtheninternet based legal cooperation and set up an online legal support platform.

 (Source: SPC’swebsite)

http://www.court.gov.cn/fabu-xiangqing-315981.html 


Picture of the month: 

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Photographer: Lawyer Pan Liyun

Caption: Datong, Shanxi, May 2021