The Right To Privacy

As one of international human rights generally respected, the right to privacy has played an important role in the field of law. But the right to privacy is both familiar and strange concept in our country's law. 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 legal provisions and judicial interpretations presented, the right to privacy has not been confirmed and protected so far in our country and has not formed the integrity of the legal system. The reason lies in: only paying attention to normative analysis but ignoring positive analysis and value analysis, which results in the lack of whole grasp and basic research of the right to privacy. Through carefully combing the historical development of the right to privacy, this article has carried on the fact and the value research to the right to privacy. And based on this, from three angles that are the enactment of the right, the exertion of the right and the protection of the right, this article has constructed the system of the right to privacy and has finished systemic study on the basic legal principle of the right to privacy.The whole article includes foreword, six chapters and conclusion.The foreword has explained the meaning of studying the right to privacy, the problem remained, and the researching approach and methods.Chapter one deals with the historical investigation and the definition of the privacy. This chapter has used the methods of historical investigation, social analysis, comparative analysis and semantic analysis, and some psychological theories related, through combing the historical development of the privacy, to analyze the in-depth factors that affect the development of the privacy, and make the definition of the privacy. Looking through the historical development of the privacy, we can find many kinds of factors that affect its development together. The needs of human instinct, self-protection and self-actualization create the psychological power of its development. The division of the public and private field has provided the political premise of its creation. The development of productive forces and technology provide the material base of its development. The different cultural tradition cause it multiple. As a result of the dynamic development of the privacy and the influence of many kinds of factors, it is extremely difficult to announce the privacy completely and to make the definition uniform, accurate and changeless. Therefore, the writer chose to make the definition of the privacy according to the present situation of our country and the future development, and from the angles of the intension and extension. This article has put forward a thought that the privacy is a descriptive and factual concept and a neutral word, but not a complete legal concept and does not contain any value judgment, and the privacy is the foundation of the right to privacy, but cannot be adjusted completely by the right to privacy.Chapter two deals with the historical investigation of the right to privacy. This chapter has used the methods of historical investigation and comparative analysis, through combing the historical development of the right to privacy, to look for the clue of historical development of the right to privacy. Investigating the historical development of the right to privacy in Anglo-American law system and in continental law system, we discovered the legal cultural tradition has little influence on the development of the right to privacy. The countries in the same genealogy of law have the same legal culture tradition, but the protection of the right to privacy are very different. And the countries in the different genealogy of law have the different legal culture, but the protection of the right to privacy are similar and the ways of the protection are different. But the wide protection of the right to privacy establishes directly or indirectly in almost all countries. After World War II, the international laws of human rights had confirmed and protected the right to privacy, thus pushed this right from internal protection to international protection. Though there were fragmentary provisions and thought that personal secrets interest were protected in ancient China, but the right to privacy with modern meaning started in the 1980's, and demonstrated the characteristic with scattered law, indirect way and fragile means. Making the comprehensive view of the protection of the right to privacy in different countries, the right to privacy unceasingly develops and expands in the field of law. From nonexistence to existence, from single law department to a lot of law departments, from indirect protection to direct protection, from one country to many countries, from internal law to international law, the scope of the contemporary right to privacy has expanded constantly; from property right to right of personality then economic interest been paid attention to, from passive right to positive right and information self-determination, from being a kind of private right to excluding public power, the intension of the right to privacy has became more abundant constantly.Chapter three deals with the value analysis of the right to privacy. This chapter has used the method of axiological analysis to seek the oriental value of the right to privacy. Because of having different understanding and different standard of value judgment to the right to privacy, the scholars have different viewpoints to the value of the right to privacy. In real-life, because of the social material-life condition, the spiritual-life condition and needs to the law are different, the standard of value judgment to the law of each subject is different, and cannot use correct and wrong to judge it. This article has used the Marxism value notion to analyze the right to privacy, and has put forward the right to privacy pursues both goal value - personal dignity and the tool value. Therefore, the right to privacy brings the life of each person peaceful and safe, at the same time it promotes the national democracy progress and society's harmonious development.Chapter four deals with the connotation of the right to privacy. This chapter has used the method of comparative analysis to analyze the connotation of the right to privacy, and has confirmed the definition, the nature, and key elements of the right to privacy. The right to privacy is the concrete right of personality that the natural person can control the individual legal privacy and exclude illegally intrusion. It protects mental personality interest and property interest. It has the passive and exclusive character and also has the positive and control character. The normal performance is one kind of passive state that the private life isn't disturbed. The subject is not the corporation and the dead but the natural person. The object is the legal privacy. The privacy is one kind of factual state, but the right to privacy is one kind of right which conforms to some kind of standard of value judgment. The object of the right to privacy is only a part of privacy, does not equate to the privacy. The difference between the privacy and the object of the right to privacy is whether be protected by law, and the standard of judgment is law. The illegal privacy cannot be protected by law, but is still privacy of one kind of fact state. The content of the right to privacy includes the right to protect privacy, the right to amend privacy, the right to use privacy and the right to dispose privacy.Chapter five deals with the conflict and harmony in the course of exercising the right to privacy. This chapter has analyzed the conflict with the power and other rights in the course of exercising the right to privacy to seek how to harmonize the conflict and has used case analysis method to research the practical conflict. The conflict between the right to privacy and the power is the conflict of the right and the power. According to the thought that the right has precedence over power, when the right to privacy has the conflict with the power, the right to privacy doesn't make the concession inevitably. But when the power represents the public interest which keep the social order and avoid the urgent danger, the exertion of the right to privacy needs to be restricted, but the restriction on the right to privacy must accord with principle of the rational purpose, proportion principle, principle of legal provisions and clear principle, and must observe the legal procedure. The conflict of the right to privacy with other rights is right conflict which is the conflict of interest, can be solved by principle of the cooperation and exchange between subjects and the weighing interest principle in legislation and justice. When the right to privacy has the conflict with other rights, because of the special status, the privacy related public interest that is political interest or public reasonable interest can be restricted, and the exertion of the right to privacy is also restricted along with it. The conflict of the right to privacy with the national security, the scholastic managing power and the right to know which are main topics today can be solved according to the above theory instruction.Chapter six deals with the legal protection of the right to privacy in our country. In our country, serious tort affecting the right to privacy makes it necessary to protect the right to privacy, and the insufficient legal protection of the right to privacy that was caused by deficient privacy culture makes it urgent to establish legal protection system of the right to privacy. The integrated legal protection system of the right to privacy should be a comprehensive systemic project which takes setting up legal system of the protection of the right to privacy as premise, takes the powerful judicial protection as safeguard, takes popularization of modern privacy notion as foundation. First, explicitly regulate the system of the right to privacy, confirm the right to privacy an independent concrete right of personality, divide the right to privacy from other rights, define it accurately, confirm the tort and tortious liability, and provide the direct accurate basis for the judicial practice. Next, when judging the cases of the right to privacy, the judges must correctly apply the legal basis, appropriately use judicial discretion, and make the just judgement in order to carry out comprehensive effective protection of the right to privacy. Once more, the significant change in legislation and the effective protection in justice can arouse people's attention on the right to privacy, strengthen people's privacy notion, build the social atmosphere to protect the right to privacy, and the formation of privacy culture in entire social can cause people to be more positive to abide by law, respect the privacy and protect the right to privacy.The conclusion has mainly elaborated main points and new opinions of this article.