Commercial Laws Moral Rights Theory

The commercial right of personality is a new concept that has not been found in Laws and legal textbooks. In modern commercial society, there are some important social phenomena of private interests, which stem from both property and personality and are not able to be completely explained and fully protected in traditional notion of property right or personality right merely. The purpose of using the commercial rights of personality as the subject of this dissertation is to try to survey the explanation of these phenomena in jurisprudence and the protection of the interests by law from a new view.In Chapter I, many new issues, which are confronted by traditional legal system and theory of personality right in the practice of modern commercial society, are brought out through some cases. They include: whether or not the right of personality containing the economic interests elements, what kind legal nature the right of personality to be while being commercially exploited, whether or not the right of personality being able to be transferred or inherited, how to protect the right of personality commercially exploited, etc.. After the theory puzzle about these problems being discussed simply, the thinking of commercial rights of personality is referred to. Generally speaking, commercial rights of personality means the private right of human being or juristic person to safeguard his or its personality interests which has contains economic interests connotation and commercial value in his or it's personality. As an functional concept, the worth of commercial rights of personality is displayed in four aspects: helpful to reveal the new relation between the property right and personality right, to bring to someone's serious attention on the economic interests in the right of personality, to provide theory background and legal framework for the commercial exploitation of personality right, to emphasize the complete protection of the interests of the right of personality.Chapter II, through studying the system of private right and it's evolving, expounds the history base which the concept of commercial rights of personality emerges from, and indicates that commercial rights of personality is the mixture of property right and personality right. In modern society, the absolute difference between the property right and personality right is becoming relative one. Through analyzing the development and trend of the right of personality, the article indicates that some natural person's right of personality and some juristic person's one have contained economic interests element and differ from the traditional concept of personality right; on the other hand, after expounding the development of property right---from tangible to intangible, the article indicates that a new type of property right different to intellectual property right---the intangible property right in persona has been evolving, such as "the rights of publicity" in America law. As a conclusion of this chapter, the article considers that commercial rights of personality is a transitional or mixed type of right between the right of personality and the right of property."Chapter III expounds the object of commercial rights of personality. In first section, taking the object of the right of publicity as an example, the article discusses the name, likeness and other individual's identities, and indicates that what commercial rights of personality protects is not the words constituting the name or the likeness itself but the individual personality or persona—a specific intangible goods identified by them. In second section, after defining the concept of trade name and surveying the legal system of trade name in America, France and Germany, the article thinks that the nature of trade name is not influenced by the registration and is of property and information. In third section, the article expounds goodwill and advocates that goodwill should be separated from the reputation. Although the goodwill is regarded merely as a type of intangible property in common la...