Research On Civil Law Protection Of Compulsory Commercialization Of The Right Of Personality

With the development of society,certain personality,in addition to the corespiritual interests,have developed property interests,which helps promote the salesof goods and services.Under the drive of interests,many enterprises,without theconsent of the obligee,appropriate his/her personality(such as name,portrait andvoice) to advertisement campaign or other commercial activities,this phenomenonwas generalized as Compulsory Commercialization of the Right of Personality.Itshould be recognized that the personality contained property interests and spiritualinterests,which should not be confused.The infringer’s profit should not becalculated as a factor of moral damages.On the contrary,moral damages shouldcome back to its basic function of compensation and consolation,which meanscompensate the victim’s mental or physical pain.Although the law of our countrydoes not recognize property interests on personality as an independent civil right,thespiritual interests and property interests that contained in the personality should beprotected respectively.In the situation of Compulsory Commercialization of the Personality Right,thevictim’s relief approach should not be limited to infringement damages,illegalnegotiorum gestio and unjust enrichment also have some applicable scope.Under the tort law perspective,in terms of the effect,the protection of the spiritual interestsshould resort to moral damages,while the protection of property interests shouldresort to infringement damages,the amount of compensation was the usualremuneration of utilize the personality of obligee.The victim’s prestige andreputation, as well as his profit,should not be the constitutive requirements ofinfringement damages,which should only be considered as the factor of calculate theamount of damages.Whether the infringement damages or the moral damages wasapplicable totally depend on the facts of the case,this two relief approach can beapplied at the same time,not mutually exclusive.Unjust enrichment can be applied tothe situation of Compulsory Commercialization of the Personality Right,sincesubjective fault was not the constitutive requirements of unjust enrichment,it canoffset the undistributed aspect of the tort law in the protection of obligee.Unjustenrichment should be classified,the victim can claim for the profit of infringeraccording to the legal effect of unjust enrichment,which usually was the objectivemarket value of the victim’s personality.Whether the victim has the intention tocommercialize their personality or not does not affect the establishment of unjustenrichment.In the situation of Compulsory Commercialization of the PersonalityRight,the infringement damages can only compensate the loss of the victim,the legaleffect of unjust enrichment also need to compare the loss and enrichment.Those tworelief approach cannot achieve the purpose to deprive the enormous profit of theinfringer by his wrongdoing,illegal negotiorum gestio can be applied to maintain thefairness and justice of the law.Illegal negotiorum gestio can apply the legal effect ofnegotiorum gestio by analogy in order to make the infringer return the wholemanagement income to prevent the infringer benefit from his wrongdoing.And atthe same time,the victim also has the obligation to defray the infringer somenecessary cost that was spend during the process of commercialization.Theconstitutive requirements and legal effect of those three relief approach are notidentical,the victim shall have the right to choose one to eliminate incentive ofwrongdoing and provide the victim a better protection.