| This article, The Study of Some Theoretic and Practical Issues Concerning Legal Protection of the Right of Privacy, is constituted of three parts. The first part principally discusses the historical developments of the legal protection of the right of privacy, analyzes and compares the regimes of legal protection of the right of privacy of the major jurisdictions of the two legal systems and the relationship between the right of privacy and the international protection of human rights. On the basis of the analysis and comparison, the writer concludes that the characteristics of the development of regimes of legal protection of right of privacy in the major western countries are as follows: (1) the understanding of the nature of the right of privacy has developed from regarding the right of privacy as a general civil right to a constitutional and basic human right; (2) the means of protecting the right of privacy is divided into direct protection and indirect protection with the direct protection representing the trend; (3) in the establishment of modes of the right of privacy protection, court precedents lead the development and exert crucial influence both in the Common Law System and Civil Law System. This part further discusses the current status of legal protection of the right of privacy in China and suggests that the international trend be followed so as to recognize the right of privacy as a separate personal right by means of legislation and give it direct judicial protection. In the second part of this article, the writer discusses extensively the basic theoretic issues in respect of the right of privacy, including its concept, protected interests, subject and object, contents, nature, forms of infringement and attribution of liability etc. In particular, the writer probes into several theoretic issues that are being debated. The protected interests of the right of privacy are comprised of peace and safety of private life, personal dignity and social evaluation which are the root of the right of privacy and the aims that the legal protection of the right of privacy is in pursuit of. The object of the right of privacy only refers to private information which includes private activity, and private space is the carrier of private information. The subject of the right of privacy is natural person only, however, the privacy interests of dead persons also need protection. The legal protection of privacy interests of dead persons differs from the protection of their fame in that the scope of protection of privacy interests of dead persons is narrower than the living persons, while the scope of protection of fame of the dead persons is almost as wide as the living ones. The contents of the right of privacy (i.e. the various rights constituting privacy) include the right of access to privacy, the right to conceal privacy, the right to defend privacy and the right to control and utilize privacy. The nature of the right of privacy is comprised of three progressive aspects, namely, the right of privacy is a natural right, a separate and specific personal right and some of the interests protected by the right of privacy are of the value of constitutional rights. The forms of infringement of the right of privacy include the invasion of privacy and the publication of privacy. Under the circumstance that the privacy has been lawfully publicated, the act of a third person to transmit the publicated privacy does not constitute an infringement of the right of privacy. In the third part of this article, the writer attempts to establish several judicial equity rules for dealing with the various disputes concerning the conflict of rights in respect of privacy which currently catch the public eyes. The writer holds the view that due to the fact that conflict of rights is a kind of 'living' legal phenomenon, it is difficult to reconcile the conflict by laying down detailed provisions by means of legislation. Instead, the main resort is judicial equity which should be supported by legal principles an... |
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