The Outline Of The Commercial Personality Rights ——Academic Discussion And Legislative Construction

The progress of the market economy and science as well as technological progress had provided a wide field domain for the commercial exploitation of the personality elements. The commercial exploitation of the personality elements made the personality right contain property interest which did not exist before, that had challenged the traditional personality rights theory forcefully, at the same time deeply changed the theory of the private law. In response to the phenomenon in theory, a type of new personality right emerged as the time required. Discuss the conception, subject, object, content,legal nature, categorization and combine with the protection of the commercial personality rights in juridical practice as well as legislation model will benefit the codification of the personality right law in the future Civil Code of China.Commercial personality right is different from the commercial exploitation of elements of personality, the latter is precondition of the former but the former is not the inevitable result of the latter. They belong to different categories. The subject of the commercial personality right including but not limited to the celebrity, any person can be the subject of the commercial personality right. But the death does not enjoy this kind of personality right, the property interest contained in the elements of the personality can be inherited by his or her inheritors. Not all personality rights can be called commercial personality right just because their objects being commercialized.Physiological personality right, pure spiritual personality right as well as general personality right can not be called commercial personality right. Elements of personality right like portrait,name,which can be separated from individual in some degree. So personality right like right of portrait, right of name become the main type of commercial personality right. Based on the way that the commercial personality right generates, commercial personality rights can be divided into commercial personality rights which are self-inflicted, given by the others and mixed. This categorization is valuable to choose the way to remedy.Property interest is the co-benefit rather than the inherent interest, it relies on the spiritual interest and limited by it. It is part of the commercial personality rights, but it does not have a separate property right position. The existing research results attempted to use the labor property rights theory,economic analysis theory and incentive theory to justify that the subject of the personality enjoy the property interest exclusively. But this turned out to be not satisfying. In fact, the basis that the property interest in the commercial personality rights vests in the subject of the personality rights is personality freedom.To protect the commercial personality rights, both the property interest and the spiritual interest should be included. There must be a dual-legitimacy criterion to be meet if the commercial exploitation of the elements of the personality need to be protected as commercial personality rights. In cases where commercial personality rights were infringed, the mental damage can be proved by presumption and the mount of the mental damage compensation depends on individual case, functions of the mental damage compensation as well as personality equality. The property damage can be estimated through commercial use itself. For celebrities they may prove their economic lose indirectly through commercial endorsement contracts which they had signed with a third party. As to the amount of the compensation of the property damage, besides the fiction authorize payment, unjust enrichment deprivation and illegal negotiorum gestio, commercial endorsement contract is increasingly becoming a new trend in calculating the damage. Courts may choose to apply the commercial endorsement contract directly, refer to the contract or refuse to apply the contract according to the correlation between the amount of the property damage and the contract. When the relative legislative and judicial interpretation are still negative lacking, the joint application of Article 2 and Article 20 of the Tort Liability Act can provide basis of claim right, the way of bearing legal responsibility and the method to calculate the amount of the damage. Comparing with the protection paths through Civil Law, intellectual property law and Anti-Unfair Competition Law, the protection path through Tort Liability Law is a much better choose.Integration of the existing legal norms is just a makeshift, to response to the phenomenon of the commercial use of the personality we must seek legislation. There are two types of legislative mode in comparative law, one is called German mode, the other is called American mode. In the fist mode, property interest is seen as the development of the traditional personality rights theory in modern times, so there is no necessary to create a new right, commercial personality right is just part of the personality right system. However, in the second mode, America courts created public right through cases, in this model, public right is a new right which is different from the right of privacy and protect the property interest in one’s personality. But the right of privacy just protect the spiritual interest. In fact no matter which model can provide remedy. China belongs to civil law system, to maintain the stability of the civil rights system, German model is a better choice.The legislation of the commercial personality rights in China should adopt uniform provision to realize the purpose of concentrated protection, rather than adopt dispersed protection mode. Specifically, the future Civil Code of China should take the personality right law as a separate part of itself and the personality right law need to stipulate that civil subjects are entitled to obtain reward from the commercial use of their personality, anyone who using another civil subject’s personality in business activities without permission constitutes a tort. Then the Civil Code should set the constituents of infringement and its liability in the Tort Liability Act. Both the Personality Right Law and the Tort Liability Act should adopt concentrated protection rather than dispersed protection.