On The Protection Of Personal Rights And Interests In Private Law

In society of market economy, the theory that right of personality is strictly limited to purely spiritual right so as to deny the property interests in the right of personality on traditional civil law has been antiquated. Few significant differences were seen between right of personality and right of property in modern society and on the contrary, there is a two-way penetration trend on propertilization of personality and personification of property. In other words, the property interests in the right of personality and the personality interests in the right of property have become the objective facts. The admission of the property interests in the right of personality does not mean the replacement between right of personality&right of property, but with a view to improve the legal system for the protection of right of personality in the opposite direction.The propertilization of personality mainly relies on the commercial use of personality elements, which is the positive factor for the generation of the property interests in the right of personality. Beside to this, the propertilization of personality can also be realized through tort, which is the negative factor for the generation of the property interests in the right of personality. The formation of the generation of the property interests in the right of personality is a practical result on the commercial use of personality elements and torts. However, the former factor produces positive property interests in the right of personality, meanwhile, the latter one produces negative property interests in the right of personality. Under sound&legal system, the acquisition of positive property interests in the right of personality should be the basic and main form. In the meantime, the acquisition of negative property interests in the right of personality should be the exception form.The commercial use of personality elements, theory on personal autonomy, unjust enrichment&utilitarianism provide the legal basis on the private law protection of the property interests in the right of personality. At present, for the protection of the property interests in the right of personality, Germany has mainly taken the model of "unity of rights", which actually obey the thought of "internal solution". This theory regards personality interests as a interest convergence of spiritual component and property component. The interest convergence applies to the protection of the law of personality right. On this question. America has mainly taken the dualist model, which is namely obeying the thought of "external solution". In American law, right of privacy is used to protect spiritual interests on personality right. Meanwhile, right of publicity is used to protect property interests in the right of personality. As a result, publicity has been a category of property right. Japan modeled American mode and established the right mode of "Merchandising right", which actually treats Merchandising right as an independent right of personality rights. However, the essence and the right mode of merchandising right are still within the scope of intellectual property protection mode. British&Australian has mainly taken the model of "Passing off’, which essence is the mode of tort. For the strict identification on tenable important document, the effect of this protection is not ideal. The reunification of Germany right pattern is more suitable for the national conditions of our country, which can be absorbed by the relevant legislation in our country.At present, China has not yet developed a unique "personality right law". The current protection mode of the property interests in the right of personality is just "a matter of expediency", which shows distinctive features of indirect, hidden and conservative. Therefore, to protect the property interests in the right of personality, China should build a comprehensive protection mode, which is namely the mode that "taking German model as the foundation, Personality right law as the understructure, Intellectual property law&Tort law as auxiliary means." The prospective "personality right law" in our country should clear the legislation and achieve three core breakthroughs. The first one is to confirm the property interests in the right of personality; The second one is to acknowledge the assignment and inheritance on property interests in the right of personality; The third one is to build multi level compensation rules that taking compensation and benefit compensation as basis and adopting the legal compensation system and punitive damages system. For other minor details on the protection of the interests of property right of personality, Chinese traditional personality right theory will take a way of "internal solution". Blind transplantation&uncritical acceptance on foreign advanced systems take no advantages of the scientific construction of private law protection system on the property interests in the right of personality.