Study On The Internet Media Personality Rights Violations Theory Of The Conflict Of Laws

"The Law of the Application of Law for Foreign-related Civil Relations of the People’sRepublic of China" has been issued by the People’s Republic of China in2010. Which article46violations of the right to a name for the internet media, portrait, reputation and the right toprivacy to do a specific choice of law provisions, compared to the previous legislation, anexercise in innovations. If you look at the provisions isolated, may not have much problem.However, the Article46has a unique position in the system of law applicable:Norms angle from the right of personality conflicts, the conflict rules on the content ofthe right of personality "and Article15links point choice tail echo; from infringing conflictslaw perspective, Article44of the general provisions of the Tort Liability" and its compositiona combination of general tort "and" special infringement ", but the link points altogetherdifferent; view from the classification of conflicts of law and substantive law, Article46andArticle36," Tort Liability Act "is closely related to, or even from a species extent, selectedArticle46types of personality rights by the inspiration of "Tort Liability Act, Article36, isalso inherited. Departure from the Comparative Law Perspective,46is clearly a lot of theessence of the transplantation of a foreign legal system.Seen in this light, the proper understanding and evaluation "Law Applicable Law46requires multi-faceted, multi-angle considerations. Especially should reflect legislativereasons behind the text, legislative design is reasonable, how should remedy or correctexisting errors, and how it should start a discussion for future legislation.This article containing footnotes30,000more than a thousand words, in addition to theintroduction, the text is divided into three parts:The first part of "personality rights laws applicable rules and principle." First, from alegislative point of view of the world of private international law, there are three kinds oflegislation of the personality rights issue:(1) direct provision "moral rights" of the legislation,(2) only the provisions of the legislation of the right to a name,(3) the legislation Provisionsmedia personality rights violations ". Secondly, the legislation of connection points set on the content of the right of personality and personality rights protected, and there is a differencebetween the same systems with split system. Legislative thinking behind the legislation of thelast analyzed. The right personality conflict standardized design based on the factors of thepersonality right given doctrine as the main reference. But with the development of the times,due to technological innovation and lead to the infringement of change in the way legislators,thus further promote judicial practice situation, trying to part of the spirit personality rightsinfringement conflict rules separate from the general tort conflict specification trend. China isno exception.The second part is "the advance and retreat of the traditional tort conflict norms in aninternet environment." Issues arising from infringement of global coverage focuses onnetwork gradually challenge traditional tort conflict specification. Thus triggering thecountries began to discuss the "traditional tort conflict rules have the ability to respond to thisnew network media infringement" topic, and the resulting conservatism and radicalism, andrevisionism three stance. However, the purpose of the present case, it is clear revisionismmore opportune time. The connecting point of the infringement can join the network serviceprovider server location, to better adapt to the network media infringement; common personallaw most closely connected Autonomy respond to online media in varying degreesinfringement. Since then, the traditional tort conflict rules simply do the necessary correctionto face this challenge.Part III "on the Law Applicable Law Article46understanding, questioning andsuggestions." The majority of our scholars believe that Article46of the law applicable to theinfringement conflict rules specifically determine the network media, has the followingadvantages:(1) comply with the principle of the closest connection is better than traditionalpersonal law links point (2),(3) reflect the advantages of the concept of weak protection, andin the effects of the system to meet the recent infringement conflict of laws "general tort" and"special tort" separation of trends. Conflict personality rights norms; the15personality rightcontent Article44, Article46personality rights protection also happens presenteddistinguishes the structure of a "general concept" and "concept". But this analysis:(1)"infringer often residence" does not reflect most closely connected,(2) the infringer often residence "in the identified standards but more stringent requirements,(3) Article46no needto reflect "weak protection",(4) Article44, Article46in the protection of personality rightsissue to divide and conquer attitude significant value orientation bias. This paper proposesthat only through the development of "judicial interpretation (2) be amended or re-enacted asthe next legislative.