On Family Members' Right To Privacy

Privacy of natural persons are protected by the benefits of a personality. The right to development as a character later appeared in a right type of "privacy" to date from the time is not very long, but the system of legal protection of privacy the pace of development is quite astonishing, all countries have introduced a corresponding laws and regulations to protect the privacy of citizens. This is mainly because of socio-economic development of science and technology and the people of the impact of private life. On the one hand, the modernization of society are brought about by public information, expanding the public domain; On the other hand is a personal search for inner calm, the requirements alone have their own space, the contradiction between the legal protection of privacy cause constantly face new situations and new problems. As for the protection for the right to privacy of special areas especially "family members' right to privacy", the legal systems are uneven and far from forming a complete system. In China, Constitution and other basic civil laws all fail to establish the independent status of the right to privacy. Although there are relevant provisions on the right to privacy in Criminal Law, Administrative Law and few judicial interpretations, they are mostly the principled provisions and little function on operation. Therefore, general speaking, China does not have the complete system of the right to privacy, let alone the system of legal protection for family members' right to privacy. Moreover, the academic circles are lack of special study, especially the conflict of family rights. Thus, high attention must be paid to this subject. My present endeavor is to make analysis and exploration on the relevant legal issues of the family members' right to privacy, in order to draw attention on the protection for the right to privacy of special areas and further research from the academic circles.The full text totals about 32,000 words, and in addition to introduction and conclusion it is divided into four parts.The first part gives a general overview of family members' right to privacy. It mainly explores the definition of the privacy of family members, and subjects, objects, contents and features of family members' right to privacy. The subjects of family members' right to privacy are family members with conjugal relation at the core, including parents, children, husband and wife; the objects are family members' right to privacy, including the decision of private affairs of family members, domestic tranquility and personal information being free from intrusion. The family members' right to privacy is not a simple summation of the individual privacy of all single family members. It is consistent with the general citizen's right to privacy in essence. For the family members' relationship takes the role as a special social relationship, the family members' right to privacy forms unique features: the specialization of legal status of subjects of right, the uncertainty of the scope of objects, the degree of freedom mostly involving family life and the implementation of rights, etc. As for the concept of "family members' common right to privacy" proposed by the academic circles, the author takes the opinion that the subjects of family members' common right to privacy are family members, though mostly the third person outside the family is the one who infringes on the common privacy. From the perspective of the appearance of right, there are large disparities between the family members' common right to privacy and family members' right to privacy this paper examined.The second part mainly focuses on the conflict between family members' right to privacy and other rights. Conflict of rights widely exists in every aspect of social life, and the family is no exception. In family life, the right to privacy of family members is often in conflict with consortium, guardianship and right to know, especially outstanding in right to know. The author takes the conflict between family members' right to privacy and right to know as the angle of view, and horizontally develop the different subjects of the conflict between family members' right to privacy and right to know. It mainly includes the conflict between the couple's right to know and right to privacy, the conflict between the parents' right to know and the right to privacy of minor children, and the conflict between the right to privacy of the artificial inseminated children and parents' right to privacy. By means of the analysis of these conflicts, the author supposes that the occurrence of the conflict of rights is of usualness, but based on the tightness and particularity of the relationship between family members, the methods to solve the conflict are different from the methods to solve general conflicts. The first principle for solving the conflict between family members' right to privacy and other rights is the principle of "balance of interests". It refers to seeking methods to solve the conflicts by means of making the parties obtain the maximized interests but pay the minimized costs from the comparative analysis of the conflicting rights. The corresponding and special principle of "unbalanced protection of rights of minors" evolves from that principle. The starting point of this principle is to particularly protect the minor disadvantaged group. Where there are minor children, the principle of unbalanced protection is prevailing. The principle of balance of interests mainly applies to the conflict between adult children and parents and the conflict between couple.The third part is mainly the analysis of status quo of legal protection of family members' right to privacy in our country. It primarily includes the right to privacy, couple's right to privacy, and the protection of the right to privacy of minors. The right to privacy or called "right of private life" is established as the content of the protection of human rights in International Convention on Civil and Political Rights and Universal Declaration of Human Rights. It is an important part of civil rights. Of course, these international conventions are the legal sources of the protection of the right to privacy in our country. Constitution and other basic civil laws in China all fail to directly provide the right to privacy as an independent personality right. For the first time, the Supreme People's Court takes positive protection for privacy and the right to privacy by means of judicial interpretations. The existing Marriage Law including the contents of the protection of couple's right to privacy is lack of concept, and the protection is weak. Although it factually includes the respect and protection of couple's right to privacy, the provisions are general and vague, weak protection of couple's right to privacy, and lack of operability. At present, our country implemented the "Law on Protection of Minors," "Teacher's Law", etc. Although the privacy of minors to establish legal protection status, the new "Law on Protection of Minors" also details the scope of protection of privacy of minors, However, the scope of protection provided for minors should not cover all aspects of privacy, and lack of privacy for the minor violations of the provisions of the duty, as well as related relief procedure, the actual operation is not strong, their protection should not play a very good role.The fourth part mainly examines the construction of legal protection system of family members' right to privacy from three aspects. First of all, it is the choice of the legislative mode for protection of right to privacy. Multi-layer structure for protecting rights shall be taken in our country. Two-layer structure for protecting rights may be taken: as for the provisions of the privacy contents, it may take recapitulative and enumerating method; as for the protection of privacy on the whole, it takes direct protection, establish the independent status of the right to privacy in basic law, clearly provide the right to privacy in Constitution so as to putting the right to privacy as the independent personality right for protection, and meanwhile specifically standardize the content and scope of the protection of the right to privacy. The relevant provisions in the basic civil law shall be improved again. The couple's privacy shall be provided in marriage law. The legal protection for couple's privacy shall be strengthened. The relationship between the right to privacy and right to know in marriage shall be standardized. Where laws protect the consortium, the abuse of right to know of couples shall be prevented in the meanwhile, and put an end to easily using the enjoyment of the claim of couple fidelity or other consortiums as excuses and actions that interfere the couple's personal information or activities. Finally, the system of the protection of the right to privacy of minors is constructed from the perspectives of rights-defending awareness for minors, judicial protection for the right to privacy of minors, legal liability for violation of the right to privacy of minors, and the procedures of remedy.To sum up, the present endeavor is to by means of comprehensively employing empirical analysis and the Law sociology analysis put forward a wide range of recommendations on constructing the system of the protection of family members' right to privacy on the basis of the basic theory of family members' privacy and family members' right to privacy. The main innovative points are the following two aspects: in the first place, it raised two principles for solving the conflict between family members' right to privacy and other rights—the principle of "balance of interests" and consequently giving rise to the corresponding and special principle of "unbalanced protection of rights of minors" which is special based on the disadvantaged status of mines; in the next place, the construction of the system of the protection of family members' right to privacy highlights the necessity and urgency in putting the right to privacy as the independent personality right for protection.