Article 37: The provisions of this Law on the handling of personal information by state organs apply to the handling of personal information by organizations authorized by laws or regulations to have public affairs management functions to perform their legally-prescribed duties.
【Purpose of the Article】
This article is about the processing of personal information by organizations authorized by laws and regulations.
[Understanding of the article]
1. The necessity of authorized management of public affairs
Public affairs refer to the social affairs that occur with the process of social development and are related to the common interests of the state, the collective, and the individual, mainly including political public affairs and social public affairs. Political public affairs refer to public affairs that are closely related to the construction of state power, involve the stability of state power and the development of national politics, and need to be resolved by relying on the coercive power of the state, such as military, diplomatic, judicial, and maintenance of public security; Social public affairs are public affairs that do not have to rely on the coercive power of the state to solve, such as education, science and technology, public transportation, medicine and health, etc. With the emergence of public affairs, there are two different social divisions of labor: one is to directly produce public goods and provide public services, and its main body is various social welfare organizations; The other is that in order to solve public problems and realize public interests, the main body of public management uses public power to exert management on public affairs, that is, public affairs management. Theoretically, the management of public affairs is generally undertaken by state organs. However, in practice, due to the increasing complexity, professionalism and technical nature of public affairs management, coupled with the limited staffing of state organs, it is difficult for the number of civil servants to meet the needs of public affairs management, and it is difficult to meet the practical needs of relying on state organs to manage public affairs alone, and it is objectively necessary for some non-state organs to undertake certain public affairs management functions. To this end, the mainland authorizes certain organizations with the function of managing public affairs to handle public affairs through laws and regulations, and the authorized organizations exercise the functions and powers conferred by the laws and regulations in their own names in accordance with the statutory authority and procedures, and bear the legal consequences of exercising such functions and powers, and enjoy the same subject status as state organs.
2. The current legal framework of the mainland for authorized management
Under the framework of the current legal system in mainland China, the authorization of laws and regulations is mainly found in the field of administrative law. Administrative authorization refers to a legal system in which an administrative organ grants part or all of its administrative functions and powers to relevant organizations in accordance with the actual needs of administrative management and in accordance with statutory authority and procedures under the circumstances that laws and regulations clearly provide that it may be authorized, and the latter exercises the functions and powers in its own name accordingly and bears the effects of the acts of the powers. Article 23 of the Administrative Licensing Law stipulates that "organizations authorized by laws and regulations to administer public affairs shall implement administrative licensing in their own names within the scope of statutory authorization." Authorized organizations shall apply the provisions of this Law on administrative organs. Article 19 of the Administrative Punishment Law stipulates that: "Organizations authorized by laws and regulations to administer public affairs may impose administrative penalties within the scope of statutory authorization." Article 70 of the Administrative Coercion Law stipulates: "The provisions of this Law on administrative organs shall apply to the implementation of administrative compulsion in its own name by organizations authorized by laws and administrative regulations to administer public affairs within the scope of statutory authorization." "According to the provisions of the above laws, after authorization, non-administrative organizations have obtained the qualifications for administrative law enforcement, and may exercise the power of administrative licensing, administrative punishment, and administrative coercion in their own name, and independently bear the corresponding legal consequences in their own name.
According to the relevant laws and regulations of the mainland, the organizations authorized by laws and regulations mainly include the following: First, public institutions. "Public institutions" refers to units that create or improve production conditions for the state, engage in service activities for industrial and agricultural production, and are not for profit. The second is social groups. Although social groups are not administrative organs and do not belong to the administrative system, laws and regulations often authorize them to exercise certain administrative functions, such as various trade associations, and they have the power to manage certain administrative affairs of their own industries in accordance with laws and regulations. The third is grassroots mass autonomous organizations. Basic-level mass autonomous organizations refer to residents' committees and villagers' committees established in urban and rural areas according to the areas where residents and villagers live. Fourth, enterprise organization. An enterprise organization is mainly the object of administrative management, but under certain circumstances, laws and regulations may also authorize it to exercise certain administrative powers. Fifth, various technical inspection and appraisal institutions. For some matters that require the use of specialized knowledge, special skills, and special equipment for inspection and appraisal, laws and regulations are usually authorized by some relevant technical institutions to handle them.
3. Pay attention to distinguishing between administrative authorization and administrative entrustment
When exercising the functions and powers conferred by laws and regulations, organizations authorized by laws and regulations enjoy the same status as administrative organs, exercise the functions and powers delegated to them in their own name, and bear legal responsibilities externally. In the relevant legal system of the mainland, another system that is easily confused with administrative authorization is administrative entrustment. Administrative entrustment refers to the transfer of part of the jurisdiction of an administrative organ to an organization or individual other than the administrative organ and the exercise of administrative functions in the name of the entrusting organ. The legal requirements for administrative entrustment usually include four aspects: First, administrative entrustment must have a statutory basis. Administrative organs can only be entrusted when laws, regulations, and rules provide that they can be delegated. A commission without a legal basis is illegal and invalid. Second, the entrusting administrative organ must have statutory authority. When entrusting an organ makes an administrative entrustment, the public power it entrusts to the entrusted person must be its own lawful authority. If an administrative organ delegates a public power that it does not possess to the delegate, this is obviously an abuse of power, and the delegation that exceeds its authority is of course invalid. Third, administrative entrustment must comply with legal procedures. Since the affairs entrusted by the administration are specific administrative acts, complying with the legal procedures is the proper meaning of "administering according to law". Fourth, the object of administrative entrustment shall be relevant enterprises, public institutions, social organizations or individuals that meet the statutory requirements. Although the administrative management carried out by the administrative organs through its internal organs and subordinate civil servants is also a kind of substantive entrustment, it is not included in the administrative entrustment here because it has a normal internal relationship with the administrative organ.
The biggest difference between administrative authorization and administrative delegation lies in whether there is authorization by laws and regulations. Specifically, the differences between the two are mainly manifested in the following aspects: First, the operation of administrative power is different. Administrative delegation leads to the transfer of administrative power, whereas administrative delegation does not lead to the transfer of administrative power. The second is that the name and effect of the act are different. In the administrative authorization relationship, the authorized person carries out specific administrative acts in his own name, and the effects of the acts belong to him/herself; However, in the administrative entrustment relationship, since the administrative authority is not transferred, the specific administrative act carried out by the entrusted party can only be carried out in the name of the entrusting organ, and the effect of the administrative act naturally belongs to the entrusting organ. Third, the status of actors in administrative litigation is different. Where an authorized organization is authorized to carry out an authorized act in an administrative authorization relationship, it may become a defendant in an administrative lawsuit; However, in the administrative entrustment relationship, since the entrusted entity is not an administrative entity, it cannot be a defendant in an administrative lawsuit.
In summary, where the subjects to which this article applies are organizations authorized by laws or regulations to have public affairs management functions, and where relevant administrative organs or organizations accept the entrustment of administrative organs to handle personal information in accordance with the provisions of laws, regulations, or rules, the special provisions of this article and this section shall not apply, but other provisions of this law on the handling of personal information shall apply.
[Applicable Provisions]
In the specific application of this article, the following points should be emphasized:
The first is to clarify the subject to which this article applies. According to this article, only organizations authorized by laws and regulations to manage public affairs can apply the provisions on the processing of personal information by state organs when they process personal information in the performance of their duties. This article emphasizes that the source of authorization is laws and regulations. Therefore, for the sake of prudence, the external authorization of state public power is in principle limited to the level of laws and regulations, mainly including laws formulated by the National People's Congress and its Standing Committee, administrative regulations formulated by the State Council, provinces, autonomous regions, municipalities directly under the Central Government, and larger cities (cities where the people's governments of provinces and autonomous regions are located, Local regulations formulated by the people's congresses and their standing committees of the cities where the special economic zones are located and larger cities approved by the State Council, autonomous regulations and special regulations formulated by the people's congresses of ethnic autonomous areas, and decisions of the State Council that have the same legal effect as administrative regulations. It should be noted that paragraph 2 of Article 2 of the amended Administrative Litigation Law stipulates that: "The term "administrative acts" as used in the preceding paragraph includes administrative acts taken by organizations authorized by laws, regulations, and rules. However, this article does not include regulations in the scope of authorization, and in the specific application of this article, it is necessary to strictly grasp the provisions of this article, and only when authorized by laws and regulations can this article be applied. Second, it emphasizes the characteristics of the authorized organization. The authorized entity itself needs to have the function of managing public affairs, otherwise it constitutes an illegal authorization, and the provisions of this article cannot be applied. The public affairs management function mainly refers to the administrative management functions exercised by the government system and the work functions of the party's leading organs undertaken by the party committee system, usually including the research and formulation of policies and regulations, administrative examination and approval, administrative licensing, market supervision, law enforcement supervision, and public management services.
The second is to clarify the conduct to which this article applies. According to the theory of authorization of public affairs management, the authorized organization only enjoys the status of an administrative subject when it performs the authorized act, and it does not enjoy administrative power and does not have the status of an administrative subject when it performs its own functions other than the authorized authority. Therefore, in applying this article, care should be taken to distinguish the sources of authority for the acts of the authorized organization. The provisions of this Law on the handling of personal information by state organs apply to organizations authorized by laws or regulations to have public affairs management functions only when they perform legally-prescribed duties within the scope of authorization to handle personal information. If an organization has the function of managing public affairs, but is not authorized by laws or regulations, or although it is authorized, it handles unauthorized affairs or handles affairs beyond the scope of authorization, the general provisions of this Law on the handling of personal information shall apply, but the special provisions of this section on the handling of personal information by state organs shall not apply.