On The Right To Privacy

Since American lawyer Warren and Brandeis jointly published the article of "the right to privacy" in 1890, the right to privacy has play an important role in the legal field gradually, which has been a fundamental right in ocean legal system and essential content of personal right in continent legal system, and has also became an international human right generally respected. But to the law of our country, the right to privacy is a familiar and strange concept. Because of the urgent need of the society, this concept has already been discussed and advocated by the masses and media. But on the legal system, except that a few clauses and judicial explanation presented, there is not one unified concept and norm of right to privacy so far in our country. The reason lies in only paying attention to normative analysis and ignoring positive analysis and value analysis. Because of lacking whole grasp and basic research, the right to privacy evolving from common law is difficult circulate into the code law. This article has finished systemic study on the basic legal principle of the right to privacy, has explained own understanding, and has put forward the corresponding theoretical construction.The whole article includes foreword, five chapters and conclusion, about 180,000 Chinese characters.The foreword have explained research meaning, realistic problem, the methods and thinking approach of this article.Chapter one is historical investigation and social analysis of the right to privacy. This chapter has used such positive methods as historical investigation, comparative analysis and social analysis, etc, to look for the clue of historical development of the right to privacy, and then find the law of development of the right to privacy and social influencial factor in the back. The growth of the right to privacy on the society in U.S.A., came from the obscure ethics psychology at first, which mixed with simple spontaneous self-respect emotion and the conscientious idea about public & private, influenced by the thoughts of the individualism and liberalism, eventually formed dignity of human, thus established the thoughtful foundation for right to privacy. The expanding of spiritual needs, the progress of technology, the change of social structure and social conflicts produced by economic interests jointly promoted the change of the moral concept of ethics, then such spiritual interests as right to privacy had been advocated. As the natural person's personal secrets space and personal personalityreceive the new threat while the traditional law is not enough to protect, the independent "right to be alone" emerges in good time, the idea to privacy transfered to the legal right. This course started and begun with scholar's deduction and finished by the flexible judicial explain of old law. The right to privacy of U.S.A. is divided into three aspects of common law privacy, constitutional privacy and regulatory law privacy. The right to privacy broke through the constraint of the original law in similar way in other countries at the same time, depending on the explanation of the summarizing clause and new legislation. After World War II, international Human Right Act had confirmed and protected the right to privacy or citizen's right with secret private life, thus push this right from domestic law to internationalization protection. Though there are fragmentary provisions and thought that personal secrets interests are protected in ancient China, but the right to privacy with modern meaning started in the eighties of 20 century, and demonstrate the characteristic with scattered law, indirect way, fragile means, which the reason lies in the characteristic of the traditional society of China. From nonexistence to existence, from one country to multinational, from single department law to a lot of department law, from domestic law to international law, the scope of the contemporary right to privacy has expanded constantly; from proprietary to personality right then economic benefits been paid attention to, from passivism right to positive functions and information self-determination, the intension of the right to privacy has became more abundant constantly. The development of the right to privacy and social changes demonstrate interdynamic relation, three aspects of social culture—material culture, spiritual culture and system culture—exert a great influence on the formulation, development and change of the right to privacy through in different ways.Chapter two is understood of essence and probe into value of right to privacy. This chapter have used the the method of axiological analysis, law psychological analysis and economical analysis, has announced the essence of the right to privacy in jurisprudence, and sought the oriental value of the right to privacy. To the essence of the right of privacy, different theories such as "right to be alone", "intimacy" or "spharentheorie", "right of persohood", "freedom or conrol of information", "rollentheorie", "acess" etc. have understanding of different angles. The essence of the right lies in the interests, so the essence of the right to privacy lies in unique personality interests—desire for be alone by control degree of opening oneself to others, and this kind of personal secrets interests comes from the basic need of human nature deeply, especially the need for self-actuliazation. Though there are different criticizeon value and meaning of right to privacy eg legal economics and feminist and reductionism, the fact that the right to privacy existed independently have already been generally respected in modern societies. The thoughts of the public and private field, the individualism and liberalism have formed the theory of dignity of human, and the right to privacy is just the embodiment in the private field of the dignity of human personality. Among the course that right to privacy pursue ultimate value goal of dignity of human, achieve personal safe and peacefulness at the same time, have advanced the democracy of the government and country too, and realize society's diversified harmonious through ensuring personal independent and self-determination, So what the right to privacy pursue is not single value orientation, but an abundant and multidimensional value system. The contradiction of the human nature and pluralism of social interests determine the relativities of value of right to privacy, and the contradictions and existing together of the right to privacy and other rights.Chapter three is normative analysis and logic construct of right to privacy. This chapter uses the logic analytical method, carry on normative analysis on right to privacy, put forward independent norm define, and has done corresponding definition to each key element of the right to privacy. The right to privacy must keep the consistency on logic as a kind of canonical form. The right to privacy is the concrete personal right that the natural person can control the individual privacy and gets rid of illegally intervention, it is private right in essence. The right to privacy belongs to own right, inherent right, exclusive right, the subject can only be individual and natural person, subject with different identity apply to different rule, right to privacy of public figure receives the corresponding restriction because public affairs. The right to privacy belongs to independent concrete personal right and spirit personality right, its object is personal privacy. Privacy should have nothing to do with public interests, and possess rational reasonable expectation of privacy. Privacy conclude private realm, private affairs and private information. The right to privacy is the right of disposition, have positive control effect, including the power to protect personal secrets, control power, utilization power and limited punishment power. There is passive function in the right to privacy on the other hand. The obligator is anyone excluding owner (includes the country), have an obligation not to interfere.Chapter four is privacy's conflict with other rights and coordination. This chapter puts the right to privacy in whole right system to investigate, through the analysis to probe conflicts of rights and other rights or interests, seek a suitable way ordinating with other rights and interests, thus the restriction on right to privacy has beenexplicitly explained. The right conflict correlated with the right to privacy is a kind of conflict of interests and value in fact. Dissolves to conflict of rights must go by principle of the cooperation and exchange between subjects, the equal and fair principle through legislating, and principle weighing interests and value in judicial process. The restriction on right to privacy must be in accordance with principle of the rational purpose, proportion principle, principle of legal provisions, clear principle. The conflicts of the right to privacy and right to know are contradiction monopolizing information between information freely in information-intensive society, we should follow the public interests prior to private interests, coordinate principle and respect others' personality principle. Public figure's right to privacy should make way for the protection of the public right to know. The right of privacy is limited by public interests, but public interests should be clearly define, realization of public interests should also controlled strictly by the procedure We should respect the individual morals choice in restriction on right to privacy. Proper procedure is effective restriction of power involved to private realm, we should follow relevant procedural rules in the law enforcement and judicial process. We should also respect other people's private right in realization of the right to privacy, such as common privacy.Chapter five is relief and protection of the right to privacy. This chapter set out from the reverse angle when the right to privacy is infringed, carry on analysis to the relief right link of the right of privacy, construce the intact content of the right to privacy. The relief of the right to privacy is an important link that the right realizes. It is the most effective protection choice to protect in the direct method. Personality claim, claim for compensation for damage and claim for return unjustified enrichment make up foundation of relieves together, the three each have one's own formation, the effect and scope of application, and can exercise the right together or choose to exercise too. A most important remedy is compensation for damage, including compensation for property damage and spiritual damage. Protection of right to privacy can adopt relieve on force of state and relieve on private power. Constitutional privacy can indirectly apply to civil relationship by means of existing private law doctrines. We should pay attention to containing the mode of protecting by oneself in right of privacy of the information in cyber times.