Exploring the rationale and practical application of the rules necessary for a contract without consent
Wu Xuanhang
（School of Law, Xiamen University, Xiamen 361005, China）
Abstract： As one of the “Consent exceptions”, the rules necessary for a contract provide a normative basis for the dynamic balance between the protection of personal information and the rational use of personal information. Pursuant to Article 13 (1) (2) of the Personal Information Protection Law, the rules necessary for a contract consist of two situations: one is necessary for an individual to enter into a contract as a party to a contract with a processor as a party to the other party, and the other is necessary for the performance of the contract by the abovementioned parties. Personal Information Protection Law sets up the necessary rules of the contract is not “Overhead” informed consent rules meaning, the purpose, scope, and context of the processing can be defined as three levels of conditions for the required rules of the contract. Based on this, this paper enumerates the application of the rules necessary for a contract from the common personal information processing scenarios. In addition, we should grasp the necessary rules of the contract accurately from the legal effect. Firstly, the rules necessary for a contract do not exclude the application of other bases of legality. Secondly, the application of this rules may exempt consent from solicitation, but not in the case of “Re consent” and “Withdrawal of consent”. Moreover, the rules necessary for a contract only exempt the processor from the consent seeking obligation, and the processor is still required to comply with the personal information processing rules. Finally, it should be made clear that the application of the necessary rules of a contract is mostly for the benefit of the person whose personal information is processed.
Key words : personal information processing；basis of legality；rules necessary for a contract；consent to exemptions
