On Legislative Construction Of Chinese Nature Person Commercial Rights Of Personality

Enter the 21 st century,the global commercialization develops fast,the scope of commodity presents continuously developing and expanding tendency,personality traits such as name,portrait that previously were not considered as commodity are now possessed with property value and are recognized and legally regulated by each country,"Commercial Personality Right" is extremely simple but accurate expresses the content and nature that this kind of personality right is different from the traditional personality right.According to the thinking path that Marx thinks the economic base determines the superstructure,commercial personality right is the result of developed commodity economy,and is the product of human right run to advanced stage,and is an inevitable trend of personality right development."General Principles of Civil Law of the People's Republic of China"(hereinafter referred to as the "General Principles of Civil Law")was generated in the last century 80's,under the constraints of the legislative background and socio-economic conditions,it could not foreseen today that the phenomenon of commercialization of personality traits is extremely widespread,the provisions in Article 99 of the General Principles of Civil Law on the name right,the provisions in Article 100 on the portrait right,are set based on the original intention of protecting the personality interests,combined with the "Tort Liability Law of the People's Republic of China "(hereinafter referred to as the "Tort Liability Law"),provides claim right basis of negative protection for the name right and portrait right which are the two most typical commercialized personality rights.With the development of commodity economy,the essential attribute of commercial personality right-property and positivity are increasingly prominent.The natural person's property exists due to the appearance of personality,and always accompanies in the various stages of the evolution of personality,the proposal,determination and development of personality right theory,and presents the development tendency of future personality right property ubiquity.The objective fact II that the personality trait in the commercial personality right have property value,determines the right subject having positive right for the purpose of profit to use its personality trait in commercial activity.The positivity of commercial personality right embodies the national and social respect to the people,and respect the right subject to the use its own personality trait according to the inner will,which is the result and performance of the personality right developed to the advanced stage.The commodity economy is the economic basis of generation and development of the commercial personality right;on the one hand,it leads to the thought and idea of constructing the commercial personality right,and on the other hand,creates the legal environment for promoting the development of commercial personality right.Chinese traditional small-scale peasant economic system and the idea of stressed agriculture damped commerce seriously hindered the development of economy,bound the progress of technology and curbed the generation of human right awareness.Since the implementation of the reform and opening-up after the Third Plenary Session of the 11 th Central Committee,the Third Plenary Session of the 12 th Central Committee of CPC put forward the strategy to the develop commodity economy in a planned way.The 14 th National Congress of the CPC emphasized the development of the socialist market economy.At present,China has established a complete market economy system,which lays the solid economic foundation for the construction of the commercial personality right system.At the same time,the commercial personality right is the inevitable requirement when personality right developed to the advanced stage,and is the urgent need of judicial trial practice.The establishment of the commercial personality right is imperative,but in the continent law system,its establishment fell into the theoretical dilemma,follows the traditional civil rights category dichotomy,all the rights content is incorporated either in the personality right or in the property right.Chinese traditional view of civil law thinks that the personality right and right subject cannot be separated,taking the protection of the spiritual interests as the content,and not involving the interests associated with the property.While the commercial use right of the personality trait such as name,portrait which already has a significant property value,is difficult to conform to the personality right and property right of traditional civil law,which caused theoretical difficulties to determine the nature of the commercial personality right.There are a number of considerations when law scholars defines the nature of the commercial personality right,or consider to cover the commercial personality right by means of III extending the content of the personality right;or to classify it into property right in consideration that the personality trait possesses property value;or to rank it as a new type of intellectual property because of its similarity with the intellectual property trait.Personality trait is generated based on the internal personality of people,and by external form expressing the subject personality,self and the difference from the trait of others,and it is the existence inseparable from people's inner,spirit and will.Personality trait is generated for people,and its essential interest is the interest comes from the personality-centered development.The development of new technology and biomedical medical technology provides the new carrier for the commercialized communication of personality right,and provides the possibility of technical conditions for the commercial use of partial personality trait.Taking into account that the property interests contained in the personality trait is formed based on the personality content of right subject,and maintain symbiotic status with personality interests,the commercial personality right considered as a part of personality right shall be more appropriate.The generation of commercial personality right is not achieved overnight,and it is not instantaneously formed when the social and economic developed to a certain extent,but since the theory of personality right created,it is already contained in it,and its basic concept and essential content along with the establishment,generation and development of personality right gradually come to the present feature.In fact,the personality and property from the very beginning is not the existence of insulation,in the period of the ancient Roman law,the brutal reality that no personality is no property can be a case in point,unequal Roman law mercilessly deprived of the personality of slaves make them as objects.In Roman family,the family worked together and lived together,but only the head of the family possessed with complete personality,and only with the complete personality could have all the property of the family,to control and use in accordance with its own wish.According to Roman law,the family members did not have complete personality,so unable to have independent property,or even had no right to sign a debt contract.Through these phenomena may draw a conclusion: since the Roman era,there have been close connection between personality and property,the connection presents that the personality is the prerequisite and necessary condition for the acquisition of property,and the property is the external form of personality.Since the creation of the concept of personality in ancient Rome,personality and property has been interdependent,the people lost property is just as the voided definition.In modern civil law,the proposal and development of personality right theory still cannot be separated from the property content.The natural law concept of natural rights is deeply rooted in the hearts of the people,personality freedom and personality dignity express the inner demands of people,the spirit of natural law is implemented through the positive law,and the European countries have successively formulated civil code to escort personality right with the law,though the "French Civil Code" And the German Civil Code do not specify the personality right,they have reached a consensus in the aspect of personality right protection,both taking the terms of tort liability as basis for the claim right of the personality right.In the theory of modern civil law,the jurists such as Gareis,Kohler and Gierke demonstrate from different perspectives on the relationship between personality right and property right,for example,Gareis sums up the theory that personality right belongs to property right,Gierke demonstrates the property of the personality right,Kohler puts forward the theory of commercial activity right,and etc.To sum up,in the process of the generation and development of the personality right theory,property right have accompanied with it all along,which continues the close relationship between personality and property in Roman law.Marxism advocates that law is open,and should be adept at learning all the achievements in the history of human thought progress,regarding the exploration of the commercial personality right of natural people,needs to study the each historical stage of its germination,origin and development,and then to grasp the inherent regularity of its birth and growth.Classical natural law property theory,Kant property theory,Hegel will-injected property theory lays the foundation of philosophy of law for the property of commercial personality right,party autonomy theory and personality autonomy theory lays the theoretical foundation for the establishment of positivity of commercial personality right.Modern private law focuses on the new problems occurred in the development of personality right-the commercialization of personality right,countries in accordance with their respective legal models have used legal technology to carry out the protection for the property interests of the personality right,the United States after half a century to create the dualistic model of privacy right system and publicity right system in parallel,which make the property value on the personality identification extracted from the privacy right,and the property interest is protected by the publicity right.France has chosen the model almost the same with the United States,the property personality right that is the publicity right,and spiritual personality right have their own division to protect property interests and personality interests respectively.The United Kingdom recognizes that unauthorized use of the personality trait of others for commercial activities constitutes tort,under the counterfeiting system regard it as the property right in the business reputation.The continent law system takes Germany as an example chosen the unary model,tries to integrate the property interests of the personality identification into the protection system of the traditional personality right on the basis of the protection of the traditional personality right to the personality spiritual interests,to realize the unified mode of protecting the personality right commercialized interests.China follows the civil law tradition of continent law system,attaches importance to the protection of personality dignity,coupled with the boundaries between personality right and property right increasingly blurred with higher the development level of the market economy,showing a trend of mutual penetration,see from this,to use unary model as reference to develop commercial personality right protection model in line with Chinese national conditions would be a good choice.The law degree in today's society has been improved continuously,which meets the needs of humanism spirit,and adapts to the development degree of market economy,so the position of commercial personality right in the system of personality right shall be correctly understood.Although “The General Principles of Civil Law of the People's Republic of China”(hereinafter referred to as the General Principles of Civil Law)were officially released on March 15,personality right failed to be codified independently already became a conclusion.However,the provisions on personality right in the General Principles of Civil Law were too simple to solve the complex problems appeared in reality,so it is necessary to systematically construct the system of commercial personality right.The property of the commercial personality right is characterized by the fact that part of the personality traits of the right subject usually have huge property value,so confirming the right subject has positive disposal right,not only can make the obligee get more complete relief,but also is the implementation of the principle of party autonomy,which is the better way for giving respect to the right subject,and in line with the inherent moral requirements of the law,and is the due commitment that the rule of law gives to the citizens.