| The dual division of personality and property has become an important cornerstone of the civil law system in modern times,which has fundamentally influenced the historical traceability,philosophical basis,system arrangements,legislative technologies,judicial application and system revision of civil law.But the proposal and normative application of the“personality interests on property” have somehow given us an opportunity to reflect on the dual division.In general,the protection to the “personality interests on property” raises at least the questions as follows:(i)Is it possible to break through the restrictions that “the property damage is limited to things” and “the non-property damage is limited to human beings” under the dual structure of personality and property? In other words,whether the claim that the damage to properties(things)themselves can also produce non-property damage(mental damage)is justified or not;(ii)As China is deeply influenced by the German civil law system,the connotation and extension of the concept of “property”(in most cases “properties” are equivalent to “things”)directly affect the categorization of “properties” with strong personality attributes such as embryos,corpses and genes,and further more the categorization directly concerns whether we can dominate the above-mentioned special “properties” by “dominant behaviors” we usually adopt for general properties;(iii)Is it possible to establish “contracts” on these special“properties” with personality and moral interests if the concept of property is not limited to“things”,and is it possible to claim the compensation for mental damage on the ground that the breach of contracts causes “damage to personality interests”;(iv)How to identify the personality interests on these special properties and what are the criteria for classifying them,which are directly related to what personality interests on what properties can be protected by the law;and(v)How to make institutional arrangements for the protection of the above-mentioned “personality interests on property”,which concerns the self-suitability of the existing system,the establishment of the basic norms of the right of claim,the allocation of the burden of proof of the parties and so forth.Based on the above-mentioned issues,the author will discuss them one by one in the following chapters.Chapter 1 discusses the historical evolution of the relationship between personality and property in order to explore that the distinction between “personality and property” isgenerated from the beginning or in the historical process,or is just “stipulated” in the legislation.Also,this chapter explores from the ancient Roman to the modern society how the concept of property has evolved.In the process,the concept of property has undergone two transformations,one removing identityization and the other removing personalization,until it becomes a concept with strong inclusiveness and flexibility.The civil rights system,based on the interests embodied by the object of civil rights,distinguishes personality rights from property rights,thus forming the two basic elements of the civil rights system.Therefore,on the one hand,the personality and property are clearly separated from each other in the legislation;on the other hand,the personality interests and property interests in the complicated real life have always broken the barrier and coincided each other at the marginal border,and even transitioned to the other side of the border,forming corresponding intertwined rights that are recognized and protected by the law.Scholars have been interpreting and demonstrating these rights from different perspectives and in different ways,and have also incorporated this legal phenomenon into the existing private law system.Whether it is the expansion of subjectivity or the expansion of objectivity,the core of it is to incorporate some controversial objects into the subject's category through the multi-layered understanding of the concept of personality or rights,or to include some property with personality interests.The scope of protection of special items neglects the systematic interpretation of such special property.In order to solve such problems,it is necessary to jump out of the inherent idea of the blurred boundary between personality interests and property interests.Specific to different types of objects,the proportion of material and spiritual interests is different.At the same time,the internal personality elements and property elements of the rights object show dynamic changes,and the economic attributes and non-economic attributes of the protected interests form have different emphasis.Or biased towards property rights,or biased towards personal rights.This “duality of property rights”,which simultaneously contains personal interests and property interests,is rooted in the fact that the “free will”,which is the core of the rights subject,has different degrees of dependence on different rights objects.On the issue of “personality interests in property”,property rights include personality interests and property interests are factual issues,whether the interests therein are protected and to what extent they are protected and relieved-only property interests,or only personality interests,or the protection of the two,is a matter of value judgment.Chapter 2 discusses the generation of personality interests on property mainly in order to explore what is the essence of personality interests protection and how the interests are attached to property.This chapter first sorts out the scope of the request for compensation for mental damage.German law and the Anglo-American law referee have a similar historical context.The protection and relief of personality interests presents a development context from attachment to the person,to becoming an independent cause of action,and then to attachment to individual property.With the gradual independence of personality interests,it laid the foundation for the compensation system for mental damage centered on the protection of personal interests.Furthermore,it points out the synonym of “personality” and “spirit”.Therefore,the damage of personal interests can be compensated for mental damage.The core of the relief is the human emotion.The independent personality right and the essence of the protection of personal interests in property are the same emotions,but there are differences:the independent personality interests recognized in the personality right or the positive law,and the necessity of the carrier as the necessary condition for the personal interests;Personality interests in property are premised on specific carriers,which are often specific.The process of “Personification and Empathy” of the right holder is embodied in the property,and the “public sense” and “symbol” are used to achieve legal publicity and predictability.At the same time,the symbol can be relative,and its publicity is related to specific traditions,regions,cultures,and habits,because these factors are related to specific emotions.Particularly,the paper notes that folk customs in specific cultural contexts often form human emotions,which in turn become personality interests that can be legally protected.Chapter 3 mainly discusses the identification and type reconstruction of the personality interests on property.On the basis of examining how the legislation and the administration of justice regulate and apply to personality interests,this chapter proposes methods to carry out a systematic type research.The core issue of the protection of personality interests in property is how to identify the personality interests of these properties.The current national legislation has general provisions,clear provisions and principled non-protection three kinds of remedies for the personality interests of the property: the first one is unified into the general provisions for relief in the absence of explicit provisions of the current law;In the case of a clear norm,but there is no standard of identification,the referee is given the attitude of limiting the contraction;the third is that the principle does not recognize the personality interests of the property,and the case does have the need for protection.In the context of the existing legalframework,interpretation and expansion are carried out through the initiative of the judiciary.The different legislative modes mentioned above bring about differences in judicial practice.However,as a whole,there are different standards for the application of existing norms in the referee,the relativeization of the personality interests on the property is relatively generalized,and the identification rules are not systematic.Judicial practice has different standards for the application of existing norms,and the identification of personality interests on property is relatively generalized,and the identification rules are not systematic.Based on the argumentation basis of the “emotional” projection on the aforementioned property,this paper classifies the aforementioned “emotions” that attach to the property into three categories,namely: the first category,the “self-emotion” of people,here mainly refers to the human For people,care,expectation,appreciation and respect for themselves;the second category,the“interactions” between people and others,here mainly refers to the emotion between people,and the emotion between people and animals;Classes,the “common emotions” formed by traditional social habits,mainly refer to the emotions formed by factors such as family,social ethics,and local traditional habits.These three categories are discussed separately in the later chapters.Chapter 4 demonstrates the personality interests on property that derive from the“emotions of the self”.There are two emotional aspects to such personality interests.One is the respect for the self as human beings,the other is the memories about special experiences that bear a commemorative meaning for the self.The material carriers to which these two different personality interests are attached are also significantly different.Based on whether the material carrier is the human self or not,it can be seen the former carrier indeed is the human self,while the latter is not.In terms of the former,it is mainly embodied in human in vitro embryos,isolated organs,and genetic material in human tissues.To understand this kind of special property with the “duality of property rights”,the question of “the transition between people and things” can be answered.The property derived from the person is placed in the property right category of the object,and the personal interests on the carrier of such material are recognized.The proportion of the proportion of personality interest is differentiated according to different situations,and the disposition can be different.As far as the property outside the person is concerned,the size of the attached personality interest is not necessarily related to the economic value.However,this kind of property carries a significant emotional interest.It is necessary to combine the specific circumstances of the case in thejudicial practice and comprehensively consider multiple factors.Identification of the personality interest of the property.Chapter 5 demonstrates the personality interests on property that derive from the“interactive emotions between the individual and the others”.In the types of emotions that people communicate with the outside world,some properties can be directly reflected as the items left by the “others”,which can be a memory or nostalgia for the subject self.And it is because of the participation of the “others” that the emotion occurred and the carrier become valuable,thus generating a corresponding personality interest.In the type of emotion between the person and the other,this chapter divides the subject of the subject and the object into the standard,and divides the object of “interactive emotion” with the right holder into human and pet.For items with a specific commemorative meaning,such specific items attached to“interactive emotions” are unique and irreplaceable,permanently lost or destroyed by infringement,and the right holder may claim compensation for mental damage.At the same time,it is necessary to consider that the commemorative gifts presented by relatives and friends are also quite different from the relics of relatives and friends.As far as the former is concerned,relatives and friends are still alive,and there should be very strict restrictions on the compensation for mental damage caused by violations.As far as relics are concerned,the commemorative items left behind by relatives and friends have become the right person's emotional projections to relatives and friends.The only sustenance is not substitutable and there is no possibility of making up for it.As far as animals are concerned,animals also have a sense of life.People are companionship and affection in the long-term interaction with animals.This phenomenon is common in modern society,but the identification of such personality interests requires relatively strict standards.Chapter 6 demonstrates the personality interests on property that derive from the“common emotions”.Such emotions are often associated with specific identity relationships and often have similar manifestations in different social traditions,hence the so-called“common emotions”.The intersection and coincidence of social common emotions and personal emotions indicates that the self-emotions of individuals or the emotions of interaction with others may be universally recognized in the process of the rise of the legal order and the shaping of the legal model,and become common social emotions.And protected.Therefore,the protection of personality interests obtained on specific property may not be obtained based on the ownership of “ownership” in civil law,and such rights may beobtained based on a convention or a “common sense of society”.At the same time,“social common emotion” also intersects with the “interactive emotion” discussed in the fifth chapter,because in the society to consider this problem,naturally there must be the existence of“others”,otherwise there will be only “subject me”,but The difference is that the “others” in“interactive emotions” are often “specific”,and this “specific” other is associated with myself,which is the premise of protection;The “others” of common emotions is often “non-specific”.The emotions generated by this kind of society may also have different expressions and regulations in different societies,and their connotations and extensions are different.It is more likely that the changes in social sentiment may change or differ with the changes of society.On this basis,this article divides the emotion type into two kinds according to the different identity relationship.The first category is the emotion generated based on the close relatives' relationship.The personality interests of such emotions are generally attached to the body(corpse).The remains of the remains,the cemetery,etc.;the second category is the emotions based on the relationship of the clan.The personal interests of such emotions are generally attached to the property such as the ancestral temple,genealogy,and ancestral portraits.Chapter 7 explains the damage remedies for the personality interests on property.This chapter proposes to protect the property with personality interests into the scope of tort law for protection.It adopts the norm of personality right infringement to absorb its property attributes,and establishes an independent claim right in the tort law to protect the property with personality interests.At the same time,the premise of requesting compensation for moral damage is that the infringer has a deliberate subjective mentality.The purpose of type research in practical cases is to explore the basis of the generation of personality interests.It also summarizes the situations that may be involved at present,and summarizes the factors that determine the personal interests of the property,forming a Typed referee standards provide guidance for judicial practice.When the inclusion of typed “property” emerges,the use of predictability rules is actually reduced.In terms of the burden of proof,the infringer has less responsibility for the proof of whether the damaged property has a personality interests,and the burden of proof for the infringer to defend or deny is biased.Moreover,the paper believes that researches on the categorization of personality interests on property are able to provide relative predictability standards for the judicial practice and corresponding actors on issues of identifying personality interests on property,allocating the burden of proof,and discerning the application standards of responsibility,in order to prevent the abuse of the right of claiming “compensation for mental damage” in corresponding fields.At the same time,the paper also establishes certain restrictions on the predictability standards,including the infringer who violates the customary good practices can not be protected by such standards. |
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