The Civil Protection For The Personal Benefit Of The Deceased Before Death Abstract

The Civil Protection For The Personal Benefit Of The Deceased Before DeathIn accordance with the provisions of China civil law, the civil rights of natural person beganin the birth and ended in the death. When a person died, his right ability will be disappeared, andno longer has civil rights. Whether the personality interest of the dead will be protected by civillaw or not? Civil law in China did not make a better rule about this situation. However, protectingpersonality of the dead are the common practices in the judicial practice in China. The problems ofprotecting the personality interests of the dead are out of the range of the law for a long time. Thepersonality interest of the dead is a complex definition. It is not only a legal issue, but also relatedto morality, customs and social policy, and so on. The law should protect the personality interestsof the dead, in order to maintain the dignity of the human society and kindhearted customs,.However, in the process of legal practice and judicial protection, whether the personalityright still exists or not, after people dead; how to protect the personality interests. Who is thesubject of the right of claim; How to determine the role of the deceased relatives or offspring ofthe dead in the process of protecting the personality interests of the dead. These questions have notbeen answered. This article will be discussed from four aspects.The first part is case study method.first, the case of “Han Yu case” and “Jiang Xiaoyan chargeChen Shuibian” are discussed. These cases reveal that there are a lot of cases, which infringe thepersonality interest of the dead in judicial practice. Also, this part introduces the current status oflegislation and judicial practice in China. Finally, this part proposes the issue of protecting thepersonality interests of the dead, such as whether the dead have the personality right, the subjectand scope of protection and so on. The second part discusses the connotation of the personality interests and demonstrates thenecessity of protecting the personality benefit of the dead, also the different theories in theacademic circles. The relative definition, such as personality, personality right and personalityinterests are introduced and discussed their relation with each other. Therefore, the part proofs thatthe personality interests of the dead need to be protected. The premise of protecting thepersonality interests of the dead is that whether the dead have the ability for civil rights or not.This premise evokes the legal profession comes up with the different theory about this premise.Writer analyses and discusses the different theory. Finally, the theory of “The law benefitprotection said” is more reasonable and is able to protect all the respect of the personality interestsof the dead.The third part analysis foreign countries’ legislation mode about the protection of thepersonality interests of the dead. American law created public rights, and set up that the publicright has property, alienability, inheritance characteristics. They also set up the period ofprotection of the public right. Germany spend about one hundred year to build up thepersonality right from nothing. They go through “bismarck body stealing spoils”,“Mephistocase”,“Marlene case’ to protect the dead spirit interests and property interests.The fourth part introduced the different practice process of judicial practice in China andmade some suggestions about how to protect the dead personality benefit in the Angle of law andthe judicial practice. The protection of the justice practice in China has been used direct protectionand indirect protection. This part compares advantage and disadvantage between the directprotection and indirect protection. Then, this part comes up with the opinion of "direct protectionis mainly, indirect protection is complementary", also put forward its own views and Suggestionsabout improving the personality interests of the dead in law from the scope of protection, subjectof claim right, protection period, tort liability and commercial use of protection.