On The Legislative Improvement Of The Commercial Personal Right System Of China

From the viewpoint of the traditional civil law, personal right is a unique right of certain civil subject, which can't be separated from the civil subject and can't be transferred, abandoned or inherited. However, with the intensification of the market economy and the development of the whole society, traditional personal right started to have economical factors like other civil rights. Personal right becomes independent from the personality and can be transferred by certain limit. And the basis of its non-transferable has been broken. At the present time, personal right includes not only physical interests but also the interests of property. A keen discussion by scholars for the phenomenon of universal commercialization reflects the strengthening of the property interests in personality attributes.In view of this phenomena caused by the development of the market economy, theorists put forward many theories and explanations, like"commercialization rights","image rights"and"commercial personal rights". Among them, the theory of"commercial personal rights"is a creative viewpoint. However, the jurisprudential circle holds different perspectives on the issues concerning the subject of right,the nature and the types of protection methods. The significance of the issue lies in the following aspects: revealing the new relationship between personal right and the right of property, arousing the attention to the connotational meaning of economic interests in the personal right, providing a theoretical basis for the commercial use of the commercial personal right and emphasizing the special protection of the commercial personal right.In this paper, it includes the following four components in addition to the introduction and the conclusion.The first part: An overview of the commercial personal right. The commercial personal right is a right of the subject of commercial rights by operation of law; it takes the commercial personal interests as its object and can be transferred and inherited. As a special kind of personal right, it has three characteristics such as its subject being confirmed, taking commercial personal interests as its object being conveyable and hereditable. The relationship between the commercial right and the traditional civil law is like special to general. As a kind of personal right, the commercial personal right is applicable to the general provisions of traditional civil right. There still exist differences in its main body, the object, infringing manner and its consequences.The second part: An analysis of the main types of the commercial personal right. At present, there are four specific types of the right in China: the right of trade name, the right of good will, the right of commercial credit and the right of trade secrets. Trade name is the right to ensure the commercial objects to us their proprietary firms freely and exclusively during the commercial activities. Good will is the right which formed in the process of the commercial activities, reflecting the comprehensive evaluation of its production,sales and service. Commercial credit is the right to use and maintain the evaluation and the trust of the society. Trade secrets are the right to hold and enjoy their commercial secrets exclusively by operation of law.The third part: An exploration on the present legislative status and major problems of the commercial personal right system. There is neither any exact concept of the commercial personal right in the laws of our country, nor a systematic construction of it exists. On the commercial personal right norms are contained in the General Principles of civil law and other laws in a number of departments. This paper has a legislative analysis on the four aspects above and points out five main problems in the present system of commercial personal right in our country as follows: The first is the norms are too dispersive to uniform and operate. The second is the low-level legislation and the legislature confusion lacks rationality. The third is the shortage of the protection in the commercial character. The fourth is that the transference and inheritance system is still in a mess. The Last one, the responsibility means to protect the commercial personal right are not specific enough.The fourth part: On the improvement and perfection of the legislative system of the commercial personal right in China. In view of the right of the deficiencies in the system, four legislative proposals are put forward. Firstly, there should be specific prescript about the concept and types of the commercial personal right in the basic law of civil and commercial matters. The reputation of the right to decomposition and remodeling , the right to an independent the right of goodwill and credit rights. Secondly, the ranges of the personal right's object should be expanded and the moral rights in the economic interests should be recognized, and the objects which the personal right protects should include the spiritual values and property values of the character's personality interests. Thirdly, a transference and inheritance system of the commercial personal right should be established, and the transfer mode and effect of the right of trade mark and the right of goodwill should be specified. Fourth, there should be specific provisions to protect the commercial personal right; people can exercise their rights of personality and infringing the right to request the right to legal relief. In compensation, taking damages to property as main means, supplemented by other responsibilities, does not apply to spiritual damages.