| In an era of commodity economy, traditional theories based on personality rights are being shocked by the phenomenon of the commercialized use of the decedents’ personality identity. The degree of commercialized personality identity is more complete nowadays where market economy progresses rapidly and the mess media are greatly advanced, making the personality right generally derive economic value from original defense value. Traditional civil laws in China show some deficiencies on the discussion of personality right theories, legislation and judicial practice in that they are more limited to spiritual level protection and there is no explicit provisions and protection about the commercialized use of personality identity, let alone researches on the commercialized use of the decedents’personality identity. Therefore, this paper takes this point as research direction and comes to the conclusion by comparison that dual benefit protection mechanism should be set to equally and differently protect the two interests, at last, the specific rules of the construction mode are discussed, stressing the property-interest protection in the commercialized use of the decedents’personality identity.The first part starts from a series of representative cases that violate the benefits of the commercialized use of the decedents’personality identity, declaring that there exist such cases in daily life where the judicial practice is probing its way in chaos and there are no rules to follow. Through analyzing theory disputes and the status quo of legislation on this problem in China, legal thoughts are listed about the benefit protection of the commercialized use of the decedents’personality identity.The second part discusses the basic theory problems about the commercialized use of the decedents’ personality identity mainly from the benefit protection before the decedents’ death and the commercialized use of the personality right. Through organizing the relationships of such concepts as personality, personality right, elements of personality, personality identity and personality benefit, it comes that it is the property attributes of the decedent’s name, portrait, voice and so on that make it possible to commercial use which is realized through permission and succession. The subject of commercial use is the personality identity of the decedent and it is expressed by commercial promotion. It is necessary to protect the benefit of the commercialized use of the decedents’ personality identity. It is not only the inevitable demand of the market economy, also reflects the respect for the deceased personality and autonomy of will; furthermore, it is beneficial to the relatives of the decedent and it is also the inner demand of the principle of public order and good social customs.The third part comparatively investigates the protective mechanism of the commercialized use of the decedents’ personality identity based on the above discussion, including dual rights protection in the United States and the protection mode of unified rights and the labor value theory in Germany which are both set according to their national conditions and have been tested for hundred years. They have advantages and deficiencies and they gradually blend in mutual criticism. our country should draw lessons from both of them, such as construction of theories and regime. Finally, based on the investigations above, a choose is made about the protective mode of the commercialized use of the decedents’ personality identity in China, namely, adopting the dual protection mode and personality autonomy theory to solve problems in the commercialized use of personality identity. It is more reasonable and feasible.The fourth part mainly expounds the specific rules of the benefit protection mode of the commercialized use of the decedents’ personality identity in China. It includes contents, benefit balance and restriction and the completion of law application. Besides, this paper also makes some legislative suggestions. |
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