Study Of The Right To Reputation Of The Juristic Person And The Protection Of The Right Under Tort Law

The right to reputation of the juristic person,is clearly defined as a personal right of a legal entity according to General Principles of the Civil Law of the People's Republic of China and General Provisions of the Civil Law of the People's Republic of China.However,two aspects of issues need to be addressed for Chinese theory of law,i.e.,those remain controversial and those require further investigation.As for the former issues,the controversy lies in whether the interest of corporative reputation belongs to that of personality and whether the values of these two interests are the same,as well as the relationship between corporative right to reputation and the goodwill.Such controversies above affect the justification of classifying corporative right to reputation as a personal right.For the latter issues,two categories of problems need further research.First,the relationship between the reputation of corporative members plus employers and that of the legal entity.The defamation of specific natural persons is known to impair corporative reputation,and therefore,could the juristic person claim his right by prosecuting in his own name even when the defamation is only against the natural individuals rather than the juristic person?Secondly,the cause or business run by a juristic person may arouse the public attention due to the diversity of a juristic person,and thus,a balance between the interests of corporative reputation and the public freedom of expression needs to be further investigated when making public speeches regarding the cause or business.The above problems show that the right to reputation of the juristic person still needs to be further studied.The specific legal issues are the connotation,value,and scope of the juristic person's reputation,the specific content,nature,and scope of the right,the protection of the right under tort law.The juristic person's reputation is the social appraisal obtained by the juristic person,which is no different from the concept of natural person's reputation.However,it is controversial that the legal protection of natural person's reputation comes from the value of human dignity and whether juristic persons also have dignity value.According to the “pure theory of law”,both legal and natural persons are thepersonification of right and duty.A natural person is the personification of a “complex of legal norms” of the same individual,while a juristic person is the personification of the “order” of human behavior of a number of people.Therefore,a juristic person is a legal rule of order.The right and duty of a juristic person is “indirectly” imparted to an individual,and such “indirect” “intermediate rule of order” is actually a juristic person,that is,a juristic person is the personification of such “order”.Therefore,the right and duty of a juristic person is a collective right and duty,but the way they possess such right and duty is different than that without adjustment of the order by the juristic person.In view of discussions above,the actual interests protected by the corporative right originates from individuals,and it is defended in an indirect way.Such indirectness guarantees the coherence between individual ethics and that of a collection of people,which can,thus,explain why a juristic person also owns human right which aims to protect dignity.The protection of such right applies to collective dignity,as such in national dignity.The respect for a juristic person is that for the men adjusted by a juristic person with such order.According to the same theory,corporate behavior is always human behavior,and the law needs to be explained under what circumstances a person's behavior is attributed to a juristic person.The reputation of a juristic person is also generated by human behavior,so the reputation of a juristic person,its members and staff can not be completely separated.When the detrimental statement points to juristic person members and staff members rather than directly points to legal persons,it can not be judged solely on the basis of personal independence as to whether or not the juristic person's reputation is impaired.Instead,it should be combined with the purpose of juristic person's business,the importance of its members and staff to juristic persons,and the public's expectations of the corresponding social roles of the juristic person.Another problem with the scope of juristic person's reputation is the relationship between it and goodwill.Examining the use of "goodwill" in the legal provisions of our country,we can classify them into the following types: one is the measurement of assets in tax law and the other is discredit of goodwill in the Anti-Unfair Competition Law;other acts of unfair competition outside the commercial discredit,such as infringement of trademarks,business names,patents and other acts.The second use of corporate reputation and goodwill context "commercial discredit" is consistent.In order to specify the basic legal relation of corporative right to reputation,fundamental legal conceptions were adopted for the analysis.According to existing laws and regulations,the core legal relation of such right is right(claim)-duty.Only one right content is regulated,i.e.,defamation of such right in terms of “insult,libel or slander” is not allowed.However,the privilege,i.e.,freedom of expression,is contradictory to the right according to fundamental legal conceptions.Therefore,the following three statements can be clarified.The first is involved with the attribute of the corporative right to reputation.The basic legal relationship of such right does not include the duty which takes advantage of the right,or the power to transfer the right.However,the power transfer is valid in the basic legal relationship of property right,and thus,such difference is the key point to divide personal right and property right.Therefore,we can justify that corporative right to reputation belongs to personal right,along with the affirmation of the dignity and value of the former right.The second statement regards the relationship between defamation of a juristic person and other improper actions which take advantage of the reputation.Considering defamation of a juristic person and commercial defamation,they share the same basic legal relation,and the latter one is a specific case of the former one.Counterfeiting,as one of the improper actions mentioned above,however,is not regulated by the reputation rules.The third statement lies in the relationship between corporative right to reputation and its protection under law of torts.The core legal relation of corporative right to reputation is right-duty.According to the law which regulates the violation of duty of such right in respective Chinese judicial interpretation,the recognition rules are the same to general liability for wrongs in law of torts.Therefore,the recognition of the respective legal scope of reputation interests and freedom of expression,i.e.,the contradiction between right and privilege has to be solved under the law of torts.A juristic person has no domain of daily life,and his behavior is strongly involved with events with public interest,and thus,law of torts should regulate in what situations the juristic person has to give way to freedom of expression,and the extent of concessions as well as the way to achieve them.If tort law aims to take into account of the interests of both sides,it cannot just focus on the protection of reputation.Therefore,Chinese law should use the distinction principle of the speech nature in foreign law for reference,i.e.,the distinction between facts and opinions,instead of judging the illegality of the expression style based on different standards.According to the General Principles of Civil Law and the General Provisions ofCivil Law,all juristic persons have the right of reputation.However,the right of reputation of a specific type of juristic person,which is closely related to the public interest and represented by the legal entity,should be limited so as to ensure public participation in the public utilities.The way to limit the reputation of these juristic persons can be achieved through the rules of tort law instead of denying that they have the right of reputation.Lastly,the corporative right to reputation and the theory of defamation responsibility can only apply to specific cases regarding such right,which explains and solves the specific cases of interests balance.Specifically,a certain juristic person(esp.governmental person)has the right to reputation,which does not violate the principle of equal relation between persons in civil law,nor does it necessarily lead to the chilling effect.Restrictions on the protection of certain juristic person's reputation can be achieved through tort laws rather than having to deny their rights of reputation.The basic structure of protection of the juristic person's right to reputation under the tort laws is the distinction of facts and opinions,followed by judging the illegality of the former by using legitimate interests as kernel,and judging the illegality of the latter by using sincere belief as kernel.In different types of disputes,the specific criteria of judgment should be further refined.For instance,the criteria of legitimate interests and sincere belief for consumers and competitors are not the same,even though the goodwill of profit-making juristic persons is infringed under both circumstances.The novelty of this thesis primarily lies in the way to recognize the right and corporative right to reputation.This paper analyzed the right by adopting “the theory of fundamental legal conceptions” from “the theory of positive law”,and we are able to address specifically to all questions within the theory above.Moreover,we conducted empirical investigation into Chinese judicial cases of dispute regarding corporative right to reputation,as well as the classification of dispute,by applying the theory of protection of such right under law of torts.