A Text And Practice Thinking About The Constitutive Requirements Of Image Right Infringement Responsibility

Image right as one of the personality right, basic dignity and freedom, the portrait is anatural person image contains mental interests and property interests. And with the progressof science and technology and the development of the media, each field of vision, the portraitof a natural person may be placed on others even being spread, it will need to have acomprehensive image rights protection law system, encountered in reality for us to provideshelter. Real life is specific and diverse, however, inevitably difficult to find the applicableterms and conditions on the legislation, this has been particularly pronounced in the protectionof the rights of a natural person. Therefore, the author focuses on the text and practice twoAngle to rethink the components of the image right infringement responsibility.From selected144cases of judicial cases this paper induces a standard practice of theimage rights infringement, and does not constitute the practice of rights infringement reasons,from the positive and negative two aspects analysis image right infringement responsibilityidentification of necessary consideration, and then theoretically for the necessary consideringfactors in mining, form their own opinions.The article main body is divided into four parts, the first part is about the concept toclarify. First of all, this paper discusses what is "portrait", did not give express in legislation,there are different views in theory, and the processing on the judicial practice is basicallyconsistent, that is should have to face recognition, at the same time, the portrait should reflectnatural person’s external image, both facial image, also including the form image. Secondly,for image rights, the legal definition of theory and practice are all same, that image is not onlyreflected property interest, more spiritual interests.The second part is the analysis of the constitutive requirements of image rightinfringement responsibility identification. This part mainly analyzes the practice and theory isone of the elements are uncontested image right infringement responsibility, namely "withoutthe consent of the holder of the", agree that promise, is an important legal act in civil law, inthe image right infringement responsibility identification, the author thought that the consent of the obligee for others to use image, must be in the express. Secondly, as does not constitutea verity of tort liability, one of the reasons of illegal deterrent for this part also summarizes theimage rights of tort liability law deterrent for five types.The third part the author analyses the theory and judicial practice there are majordifferences "for-profit" relationship with the image right infringement responsibilityidentification, through the theory of legal interpretation, legal logic, case study "for-profit" notfor the rights of tort liability form to conclusions, and concludes that "for-profit" as thestandard for image rights damages judgment reality orientation.The fourth part of the final conclusion, the components of the rights of tort liability inessence includes:(a) without the consent of the right to use others portrait;(b) no deterrent forillegal activities. In view of the existing legislation on the provisions of the holder of thefor-profit use portrait when the infringer, the nature will still be able to apply the provisions ofarticle one hundred of the "general principles of the civil law", when the infringer notfor-profit, are applicable "general principles of the civil law" the one hundredth and the tortliability law article2general terms and conditions shall offer him relief.