Research On The Civil Law Protection Of Property With Personal Interests

Due to the different historical and cultural traditions and social development,the world's property systems vary from each other.The civil law system,which emphasizes rigorous logic,therefore,establishes the dual-structure of the real right and creditor's rights,while the Anglo-American law system focuses more on the practical application,instead of the clear differentiation of the property.The property system of a country is always deepened with the influence of various factors.The theory of juristic act of real right in Germany may be a labyrinth of thought compared with other countries,and the general concept of property in France is widely disputed,but the creation of any kind of theory is a form of wisdom that undoubtedly deserves respect.The meaning of personality has long been a clear concept in the academic circles,and the content of the property has long been known to people,but it is probably the first time that the property of personality or the property with the interests of the personality which has been come up with.Although the "Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of the Liability for Compensation for Mental Damage Caused by Civil Torts "(hereinafter,the Interpretation)uses the wording of " specific commemorative items with the symbolic significance of personality",which clearly is only a part of“the property that characterized with personality nature".The property with personal interests discussed herein,which is not yet been defined as a specific form of property or personal interests,is pervasive in practical life.However,the judgment standard on how to determine the property with personal interests is inconclusive in law,which is not conducive for the law to the regulate real-life issues as a mean of general regulation,leaving the judges tending to abuse their discretionary power when faced with disputes,"vacillating to the left and right".In addition,many legal issues of the property with personal interests are left to be solved,how to determine,from a theoretical point of view,whether its basic nature is differentiated from general property,and if so,its scope of special protection.For instance,the specific person's old photo and wedding ring are certainly belonged to the property with personal interests.However,whether such "non-commemoratory items" as pet and house falls into the category whereofneeds is worth pondering.In fact,the property with personal interests,by its nature,is imbedded with the owner's or related person's personality symbol,unique experience or emotional attachment,representing one's special personality interests that is unique in terms of the object of right,its carrier,interest origin,etc.The property with personal interests,by its scope,takes the owner's or other certain related person's specific personality interests as the ultimate orientation,entails the special scope of regulation and legislative intent that is missing in such rights as intellectual property and commercialized personality right.From a macro perspective of the whole society,the property rights with personal interests have such comprehensive value as the four aspects of economy,ethics,biology and law,contains the feasibility of compensation for mental damages,therefore,it should be specified and provided with special protection by law.This paper is divided into four chapters:The first chapter focuses on the establishment of the property with personality interests.In the historical process of the personality protection,the relationship between personality and property has experienced three stages.The first stage is the convergence of the two,resulting in the birth of unequal personality.This is a result of the ancient philosophy and the old-fashioned economic system,and eventually be withdrew from the stage of history along with the progress of thought and the development of economy.The second stage is the separation of personality and property,resulting in the birth of modern equal personality based on ethics.The concept of personality based on ethics is a product of Modern Enlightenment philosophy and humanistic thoughts,fully embodied with the protection of human subjects and therefore advocated by contemporary scholars,which thus lays a solid foundation for the contemporary personality view based on ethics.The third stage is the re-convergence of personality and property.The personality elements' commercial utility and the appearance of “particular item” exactly represents two patterns that reflected in the progress of personality modernization: the first pattern is the propertilization of personality element,which conveyed property interests to certain personality elements and therefore reflecting property value,namely,“the commercial utility of personality element”.The second pattern is the personalization of property.Certain property entails personality interests,representing spiritual value,namely,“the property with personality interests”.The appearance of these two patterns caused a series of problems,posing challenges to thelegislation and the jurisprudence theory.China's legislation on the protection of the property with personality interests starts from a scratch,however,the current legislation whereof is contradictory.Since the property with personality interests,which is also known as the property representing personality or the personality property,incurs not only pecuniary damages,but also spiritual damages,it contains personality interests,personality symbol and spiritual needs that are not reflected in other general property.In the traditional tort system,those actions that incurs the spiritual damages are only involves the personality right instead of the property right.The property with personality interests can be understood as property right in a broader sense,instead of a traditional property right.In doing so,the integrity of the traditional property system can be maintained,without causing great impact to the principle of numerus clauses.In the meantime,it can include intangible property besides traditional property in quantity into its protection scope.The second chapter discusses the definition and the typical forms of the property with personality interests.The property with personality interests features with following characteristics: firstly,it must be a kind of property,and such property mostly is tangible.Property element is the basic and first characteristic.Secondly,such property entails personality element,representing personality interests which tends to be general personality interests.Thirdly,such property is irreplaceable.When damaged,it cannot be substituted by an identical item to cover the loss of the infringed.Fourthly,the personality element whereof is relative.To clarify its basic connotation and denotation,this paper limits its conditions,offers the judgment standards,defines its owner and decider,and further compares it with other property and phenomenon,further proposes a relatively accurate definition of the property with personality interests that it is a kind of property that personality attached to certain tangible item,both the item and personality whereof are jointly belong to the same owner,for whom the mental destress brought by the damage and destruction whereof cannot be covered by an identical substitute.According to the origin of personality interests,the property with personality interests can be categorized into: firstly,the property that originated from body,such as gene tissue,gene information and tissue and organ;secondly,the property that are not originated from body,such as pet,house and virtueproperty.The third chapter reflects on the current protection pattern of the property with personal interests.The property with personality interests can be regarded as the externalization or extension of the personality right,namely the materialization of the personality right.One of the basic characteristics of personality modernization is an object concurrently bears the interests of property and personality.The appearance of such dual-interests subverts the traditional fixed thinking pattern of unitary interests,triggering our theoretical reflection and posing challenges to the practice at the same time.In cases where one claiming spiritual damages for property infringement,the court has no concrete and specific laws and regulations to invoke,depending the judge to make a fair decision only based on the general provisions of the General Principles of the Civil Law and discretion.but even when such a fair judgment was successfully made,at the time it did not fully comply with the legal provisions and judicial theory.After the implementation of the Interpretation,some cases involved spiritual damages for damage of symbolic personality memorial were resolved.However,the Interpretation is still inconclusive on the new cases that are emerging in real life and involve numerous peculiar items outside the category of memorial.For instance,the legal nature of human remains and organ is waiting to be determined,the judicial body is incapable of answering the “yes or no” question of whether such object is personality or property.The function of "explanation" is limited to the compensation for mental damage,which cannot solve a series of disputes concerning the determination,ownership,property rights of the property with personality interests,relevant breach of contract and so on.Yet,the Tort Liability Law and the Interpretation are contradictory,making inconsistent decisions becoming as pervasive phenomenon in the judicial practice.The fourth chapter explores the choice of the protection pattern of the property with personality interests and the design of system whereof.To improve the feasibility of the determination standard for the property with personality interests,the coordination of Sollen and Sein of the determination whereof can be done form the perspective of theory and judiciary.Firstly,from the theoretical perspective,identifying and excluding the specific personality elements and property elements on the rights of the property with personality interests is a must,which therefore defines the basic scope whereof.then from a practicalperspective,the establishment of strict principle and concrete principle as the two general determination standards.Under such premise,through the determination of the property right of property with personal significance,with the reflection of special life experience,and that closely related to one's personality and that bearing one's particular emotions respectively,the judgment of the nature of certain types of typical items in judicial practice can be conducted,upon which the question of under what circumstance these objects of rights entail the necessity of the spiritual damages can be determined,ultimately providing China's tort liability system with a few referable judgment standards in cases involving spiritual damages for property right infringement,reducing the possibility of courts making different sentences on same cases".Based on the study and combing on the foreign practice of the protection of the property with personality interests,China's legislation should adhere to the mode of limited protection,upon which the improvement of China's Tort Liability Law,the Interpretation and the relevant laws can be made.