Research On Transnational Protection Of Personality Right

Personality right, as a kind of exclusive rights, any person should unconditionally have this right.without the right will make people lose their right as a human being, so it is the most fundamental type of civil rights. Articles 15 and 46 of the Law of the People’s Republic of China on Application of Laws in Foreign-related Civil Relatons promulgated in October,2010 have for the first time established rules of application of laws in respect of personality right.On one hand, it shows that our country pay more attention to the protection of personality rights, on the other hand, it also reflects the cases of infringement of personality right especially the transnational infringement of personality rights has gradually increasing. These articles concerning the cantent of personality right、the application of rules are of great importance to perfect the legal system related to personality right in China. In this paper,we know every country’s conflict rules on the transnational infringement of personality rights have different characteristics, but from the perspective of legal value, the conflicts between the protection of personality rights and the freedom of expression undoubtedly reflect their nature. Through a comprehensive systematic analysis of the personality right infringement case jurisdiction, applicable law concerning foreign aspects from the advanced legislation experience, This paper propose recommendations to improve the protection of personality in this environment from some aspects of the legal remedies and other relief accordingto the current situation in our country.This paper is divided into three parts. First, it departs from the concept and feature of personality right which distinguishes it from other civil rights. Later, it briefly introduces personality right protection system of each country, and then analyzes the vulnerabilities and defects of ours. On the basis of fully grasping personality right protection system of each country, it elicits the infringement cases jurisdiction of personality right. Because of legal cultural and traditional differences between continental legal system and Anglo-American legal system, they have different processing methods on whether implement national jurisdiction strictly as well as the determination of applicable rules of law. Last, basing on the actual situation of our domestic law and conflict law, it points out the places that tort law system of foreign-related personality right needs to learn and improve. Below is the specific structure of this paper:The first part makes a brief introduction on the development history and concept of personality right, and then defines the scope of research object. In addition, it conducts a summary of concept definition about right of status, right of property and other basic civil rights to avoid confusion. On this basis, it further introduces the present situation of legislative protection of personality right. This is mainly divided into two categories: uniform legislative model and multi-legislative model. While differing from the “Other rights” which includes other personality rights in German law, our law is difficult to fully covers some other personality interests which are not identical with the concrete personality or not listed on the statute because of the openness. Later, for general personality right, only “Civil Law” has a brief provision. And for assuming tort liability, only the Supreme Court judicial interpretation makes relevant provisions which still exist blank in legal aspect. As a result, when freedom, dignity, chastity and other personality interests suffering infringement, the judges lack legal basis for processing. Our country should absorb the scientific and feasible approaches of Germany and American personality right legislation, and then perfect our personality right legal system through combining with existing personality rights protection system. Before introducing formal “personality right”, we can absorb judicial practices or specific cases to formulate the relevant judicial interpretations and perfect some blanks and loopholes in the content of personality right. While this is the most effective and feasible solution in our country.The second part emphatically analyzes the jurisdiction issues of infringement cases about foreign-related personality right. I divide it into two cases to discuss: traditional personality right infringement and network personality right infringement. Due to the special nature of network infringement, separately analyzing how to determine the jurisdiction in such situation is very necessary.When victims of traditional personality right infringement seeking legal help, the first thing is to determine the court they prosecute. It not only relates to subsequent law application issues, but also closely matters the interests of both parties. This paper summarizes it into three categoriesthrough researching the jurisdiction provisions of infringement cases about foreign-related personality right of other countries: strict domestic jurisdiction of defendant domiciled priority, conditional desirable domestic jurisdiction and priority jurisdiction of infringement effect places. For our country, foreign-related personality right infringements are all governed by the courts in infringement places, no matter domestic or foreign courts. In the aspect of jurisdiction determination, there is no special provision on expanding the jurisdiction of domestic courts intentionally. While personality right often involves a national public order and good customs as well as other contents, and different countries have different interpretations on personality right, the protection effort and scope might be different. Once a foreign court refused to accept such cases with the excuse of “inconvenient principle”, the interested parties cannot get quick and effective judicial remedy because our courts have no similar provisions as American “long arm jurisdiction principle” or Swiss “essential court jurisdiction principle”. We can properly learn from the practices of other countries, reasonably expand jurisdiction of national courts. As long as there exists a minimum relationship between the parties and courts, domestic courts legally have jurisdiction according to American “minimum contact principle”. Meanwhile, we also need to formulate strict applicable standards to prevent abuse of this principle.Due to the complex and diverse infringement forms, difficult determinacy of infringement places and many other problems of network infringement, each country should formulate more targeted jurisdiction protection system. Our country has no special provisions for foreign-related network infringement cases in civil law, while according to the latest judicial interpretation of civil litigation that supreme court issued in 2015, article 25 makes special provisions about the jurisdiction issue of information network infringement. This article explicitly includes the domicile of plaintiff, the places that infringement computers and other equipment locate into jurisdiction court, this is a huge improvement. You can see that our country pays more attention to the reasonableness of network infringement jurisdiction and ends the dilemma of no legal basis. Aiming at the places that infringement computers and other equipment locate, as long as any of the parties recalled the network home with infringing contents at any terminal, the purpose of selecting jurisdiction court can be achieved. The author believes that we can properly introduce “URL” as reference factors to restrict the parties select courts casually. Our country should formulate a clearer range and standard for “the most closely linked principle” in legal, both parties can predict the range of jurisdiction court, restrict abuse of discretion or one of the parties may circumvent the law of a country through choosing court deliberately. Otherwise, legitimate interests of the parties cannot obtain timely protection.The third part puts forward consummate suggestions for legal application on the basis of comparing and studying law application rules of foreign-related personality right infringements of each country.For the determination of personality right contents, according to the provisions of article 15 of “Application of Law”, our country adopts the determining rule of proper law with single connection point. But unfortunately, our substantive law has no complete legal system for personality right. And proper law of personality right content points to the law of obligee habitual residence, it compulsorily requires the defendants understand relevant legal system in advance which is unfair. We can use the overlapping conflict rules of obligee habitual residences and courts to mitigate unfair.In addition, when processing those foreign-related cases that infringe personality right through Internet and other mass media, I suggest do not stipulate it as the habitual residence of plaintiff singly and rigidly. We should learn from American approaches and apply the laws of the most closely related places for these “defamation, invasion of privacy” cases. Laws of principal business places, habitual residences of infringer as well as infringement result places are permitted to join, the parties may protocol choose among these laws. Although this approach makes the greatest flexible processing on the law applying rules, it has a higher requirement for judges, and how to define “the most closely related place” reasonably and scientifically has become the premise of application of law.Finally, due to the large differences on mental damage compensation system between those developed countries and China, application of foreign proper law may lead to an excessive high compensation liability of the parties in our country. To improve the execution capability of judgment as well as avoid abusive lawsuits for high compensation, when applying laws about spiritual damage compensation of personality rights infringements, we should take the differences between domestic and international system into consideration. In addition, we also should restrict the amount of damage compensation through overlapped application of lex fori. While only the establishment of comprehensive punitive damage system by referring to international practices is a permanent solution.In conclusion, when facing with foreign-related personality right infringement cases, our country should base on the basic national condition, learn from foreign advanced legislation to constantly improve the international private law system of such cases.