The Civil Law Protection Of The Personal Interests Of The Deceased In The China

Citizen from birth to death, have the capacity for civil rights shall enjoy civil rights and assume civil obligations. After the death of a citizen from birth to death, with civil rights, in accordance with the law, enjoy civil rights and assume civil obligations. Natural persons, civil right ability to destroy, and the loss of principal qualification of personality right as a kind of exclusive rights, the subject of the loss will lead to the right of the loss, so the dead no longer enjoys the right of personality, but the dead still enjoy the necessary personal interests. The dead, is a worthy of study of theory. The deceased personality interests protection is based on the dead of legal interests, the social and public interests of the maintenance, is the social civilization and progress. The deceased personality Value pursuit of law of autonomy and public order and good custom principle. So, the study on the personality protection for the interests of the deceased has very important theoretical value and practical significance. However, the legal system of protection to personal rights of the dead is not perfect should be further in-depth discussion on construction of the system on protecting the interests of personality of the deceased person. By pointing out the necessity and the basic theory of the deceased personality benefit civil law protection and foreign protection status of a comprehensive study, combined with China’s current legislative status and problems, put forward suggestions to perfect our country deceased protection of personality interests. The text will be divided into four parts to launch the elaboration:The first part elaborates the necessity and the theory basis for the deceased personality benefit civil law protection. In order to protect the deceased benefit, maintenance social public interests, realization of social civilization and progress, it is necessary to protect the interests of the deceased personality. Interpretation of public order and good morals principle and the principle of autonomy of will, to prove the legitimacy of protection to personal rights of the dead. According to whether the deceased has capacity for civil rights issues are discussed, by the educational circles about the protection to personal rights of the dead of different theories, such as dead protection of the interests of the law said, to protect the rights of close relatives said, personality interests continued, to protect the interests of the deceased family said, personal interests extended protection and the dead traces of life. Each theory are Around the protection of the interests of personality of the dead objects and methods are discussed, and the each kind of theory analysis, which dead protection of the interests of the law said "more in line with the legal basis and the existing legal system, provide the essence and the effectiveness of the protection for the interests of the deceased personality.The second part discusses the current legislation situation and main issues of China’s current dead personality interests protected by civil law. In our country, the protection of the interests of the deceased personality mainly several judicial interpretation, the writings of the deceased personality interests related to the contents of the book, its special provisions. Analysis shows that the development trend in China by "to protect the right of the deceased personality" to "protect the interests of the deceased personality", the scope of protection by the initial reputation extended to the name of the deceased, privacy, portrait and the remains of the deceased, personal interests. But our country deceased personality interest protection legislation is still inadequate, the judicial interpretation merely enumerates dead specific protection of personality interests, ignoring the dead Lattice interests, the lack of perfect system to protect the right of personality.The third part introduced the deceased personality interests civil law protection of the extraterritorial investigation and reference analysis. Through the investigation of the countries of Anglo American law system and continental law system countries dead personality interests protection status analysis shows, Anglo American law countries generally personality rights of the dead into the category of the right of privacy. Germany by judicial decision must the death of a natural person is entitled to personal dignity. Japanese civil law is mainly to make to be protected after the death of the copyright owner expressly, Japanese legal circle has acknowledge the dead with a direct protection right of personality "and by protecting the dead close relatives of personality right and indirect protection of personality rights of the dead" indirect protection said "points. And With advanced experience worthy of our reference.The fourth part introduced the dead personality interests protection of civil law perfect. While fully protect the interests of the deceased personality should be achieve the interests of the deceased person of reasonable utilization, and effectively avoid causing shackles to the living rights and interests. The interests of the deceased person protection path direct path and indirect path two, the direct and indirect paths are introduced and comparison of advantages and disadvantages, the "direct protection, indirect protection, supplemented by" point of view. In full respect for the interests of the deceased personality, permit personality interests rational use and prevention and cure of overkill original is under the guidance of the construction of deceased personality interests in civil law protection system, a clear scope of protection package The general personality interests and specific personality interests, establish and perfect the system of asking for the deceased personal interests, set a reasonable period of time to protect the interests of personality, burden of proof and responsibility sharing.In this paper, the theory and method combined with the actual, elaborated the current our country deceased personality interests protection status, and take this as the foundation, from the security of the deceased benefit, maintenance social interests of analysis to establish the necessity of mechanism on protecting the personality of the deceased person. In addition, this paper analyzes the domestic and foreign die the legislation of personality interests protection mechanism, existing problems. It is pointed out that the urgency of legalization of the deceased person’s interests protection mechanism. Finally, this paper puts forward some ideas to improve the deceased personality interests protection law rules and regulations, in order to establish and perfect the deceased personality interests protection laws and regulations from the value idea into practice.