Discussion On Adjacent Relation Of Personality Rights And Its Judicial Application

Conflict of personality rights is a major issue related to the protection of personality rights and other rights. The adjacent relation of personality rights complements the past practice on rights conflict. Rights conflict was simply viewed from the angle of key components of rights and torts, and the rights boundaries of which was drawn in the way of "all or nothing". "Modesty" conflict is added as another way of rights and power and is combined with the previous way to apply to cases respectively according to their various types. It would better help to demonstrate the concept of equal protection on rights. The character of the difference between the adjacent relation of personality rights and the adjacent relation in property law is on the spiritual interests of personality rights, the limited domination of personality rights, the wider scope of the adjacent relation of personality rights, and the "imagine adjacent" and "coincidence adjacent" of the adjacent relation of personality. The manifestation of the adjacent relation of personality rights is structure adjacent and coincidence adjacent; structure adjacent is the potential possibility of personality rights conflict while coincidence adjacent is the condition required for such possibility turning reality. The essence of this kind of adjacent relation is the adjacent of interests, will and power hidden behind the rights. The scope of the adjacent relation of personality rights is wide, which includes not only the adjacent relation within personality rights, the adjacent relation between personality rights and other private rights, but also the adjacent relation between personality rights and public rights. In all the fields mentioned above, there are always space and leeway for the application of adjacent relation of personality rights to adjust conflicts.In judicial reasoning that solves personality rights conflict cases, existing forms of reasoning are limited and cannot lead to effective conclusion because the essence of the thinking process for solving personality rights conflict is actually the process of substantial reasoning. This process shall begin with two angles, which are "law of necessary" and "law of reality", and comprehensively analyze the value elements, normative elements and factual elements in related to the cases. This kind of value and normative elements include right-grade, legal interest measure, moral, legal principles, constitution of personality rights, constitutive elements of adjacent relation of personality rights, constitutive elements of infringement behavior, etc. The above elements shall also consider the comprehensive application of factual elements of the cases. In the factual elements of the cases, the particularity factor appears especially important. The result of the identification and assessment of it will affect the nature determination of a case on whether it belongs to a "infringement case" or "adjacent relation case", and the method choosing in the next about whether to apply "all or nothing" or "modesty' Such particularity factor includes the identity of subject, the scope of object, the subjective motive and purpose, the expecting possibility of objective behavior. In identifying and assessing of the above elements, we shall also connect general knowledge of life, general people's moral standards, industry norms, professional quality, and professional ethics.The judging and thinking process of adjacent relation of personality rights is an equivalent process which moves in circles between value elements, normative elements and factual elements. In the equivalent process, you shall pay particular attention to the depth and breadth of the included value elements, normative elements and factual elements. After such substantive reasoning, we also need to find legal basis for the judgement. In dealing with adjacent relation of infringement cases, we could apply the "all or nothing" method and make judgement on the basis of relevant rights protection laws and "Tort Liability Law"; in regard to the judgements applying the method "modesty", only the legal principles of the existing law could be used for reference, which is insufficient. Therefore, it's necessary to add some regulations concerning "adjacent relation of personality rights" to remedy the shortcomings of the existing regulations for judgements, in order to provide specific legal basis for adjusting adjacent relation of personality rights.