Civil Protection On The Decedent's Reputation

According to Article 9 of General Principles of Civil Law of People's Republic China (hereinafter called General Principles of Civil Law):"A citizen shall have the capacity for civil rights from birth to death and shall enjoy civil rights and assume civil obligations in accordance with the law."In china, this legislation has established basic legal principles on the protection of rights and interests of citizens; and limited the scope of main body of civil rights ability as well. However, since 1987, Xiuqin Chen prosecuted the author and the paper of serial novel Lotus Girl for damaging her deceased daughter's reputation, there have appeared a large number of litigations about the decedent's reputation. In addition, the Supreme People's Court announced several authoritative approvals documents. These made the issue of civil protection on decedent's reputation become a hotspot which has to be faced and solved in both legal theory and legal practice areas. In this article, I attempt to use comparative method, on the basis of assessing main theories and other countries'legislation, to clear theoretical basis of the civil protection on decedent's reputation and to form a complete regulation system. This Article is divided into three parts:First part-theoretical basis of civil protection on decedent's reputationThere are a variety of academic theories of the issue of theoretical basis of civil protection on decedent's reputation. In this article they are summarized as five main theories: reputation right theory, reputation inheritance theory, bereaved family's interests theory, quasi-reputation right theory and reputation interests theory. Although those theories have their own legislative breakthrough, yet they all have some contradictions and flaws. First, it is impossible and unnecessary to give decedent reputation right, and even they are given this kind of right, the right can not be and do not need be transferred to the heir. Therefore the first two main theories go against the basic civil concepts and regulations. Second, the protection on decedent's reputation is based on neither other people's interests nor the extension rights after death which are argued by the third and the forth theory separately. Third, since torts and tortious objects must happen at the same time, so the torts on decedent cannot damage decedent's interests before they die. So in my opinion the academic basis should be amended to the influence of decedent's reputation. Not only does this influence relate to the individual interests, but also the public interests. This theory makes up the flaws of other theories. Meanwhile, it avoids causing the conflict among civil right, interests and main body of civil law or damaging the foundation of the law principles so as to maintain an effective, unified legal system.Second part- legislation basis of civil protection on decedent's reputationComparing with different countries'legislation, there are many differences of the civil protection on decedent's reputation. When the legislation only regulates the start time of citizens'civil rights capability, it leaves much room to protect decedent's reputation. On the contrary, when the legislation also regulates the termination time, there are some questions and differences happened. There are some states laws, which mainly from common law countries, they do not recognize decedent's reputation unless it threats national interests and social order. However, on the other hand, some national laws explicitly stipulate the civil protection on decedent's reputation, such as Germany and some Eastern European countries.Looking at China's Civil Protection on decedent's reputation, we can see that there are different opinions about whether we should protect decedent's reputation. Some scholars argued that this kind of protection violates the of Constitution spirit. However, the common perception in both judiciary and academic areas is that it is necessary to protect decedent's reputation. This article believes that denying the decedent's civil rights and civil rights capacity is not tantamount to denying the importance of civil protection on decedent's reputation. Moreover, no matter from the view of the feasibility, the necessity or the urgency of this kind of civil protection, we shall protect decedent's reputation.Third part-civil responsibility of civil protection on decedent's reputationIn this part, the article mainly compares to the relevant provisions of reputation rights in order to study the composition elements, responsibility commitment and defense matters as well as related litigation issues. First, the composition elements can be concluded as torts, damage facts, torts which point to the decedent, subjective fault as well as causal relationship between damage and consequences. Second, the responsibility commitment can be concluded as abuse halting, loss compensation, rehabilitation, influence removing and apologize. Third, though China's legal and judicial interpretations do not expressly provide defense matter. In respective of other countries'law and China's judicial practice, the subject of defense can be identified as real content, legitimate exercise of rights, decedent's agreement and a third person's fault. Finally, under the distinction between personal interests and public interests, related litigation issues such as the choice of prosecution and the limited duration of protection will be discussed.