The Commercialization Of Personality Right And It's Civil Protection

Commercialization of personality right is the result of humanism idea and the development of market economy. The rise of the phenomenon calls academic circles into questions on the boundary of the traditional civil rights system. Our civil law is short of the protection about commercialization of personality right. It is difficult to find a unified theoretical basis and system to solve practical problems in judicial practice. So, thinking seriously about the problems of commercialization of personality right and filling the blank of our law has important theory value and practical guiding significance. Researching commercialization of personality right is to reach the balanced interest between civil subjects and finally achieve substantial justice. In this paper, in order to provide reference to the personality right legislation of our civil code, the study explore the existing legislation mode and protection rules that bases on angle of civil law, combines with the existing research results and the judicial practice, uses the comparative analysis and empirical analysis method.In addition to the introduction and the conclusion, the paper is divided into four parts to start on.The first part is mainly to solve the issues what commercialization of personality right is. Firstly, from the property interest of personality right, this part defined the meaning and boundary of commercialization of personality right. Secondly, through the perspective of Locke's theory of labor property rights and Kant's theory of free will, author demonstrated the legitimacy of commercialization of personality right from the legal theory level. Finally, through the comparative analysis of the theory of the intangible property rights, commercial personality right, new intellectual property right, expansion of personality right functions and so on, this part clear the legal attribute of commercialization of personality right. This paper argues that commercialization of personality right refers to the behavior that natural person exploit some personality factors for commercial use, or permit others to use their own personality factors for the commercial interests. Only the phenotype spiritual personality right and the privacy right has the possibility of commercial use. The legal attribute of commercialization of personality right is the expansion of personality right power, not a new civil rights.The second part investigates legal protection of commercialization of personality right in other country. The paper analyzed American double right protection mode, Germany unified rights protection mode and Japanese business image rights protection system. In summing extraterritorial basis of experience, combined with Chinese national conditions, the paper considers that we may appropriately draw Germany civil protection mode, bring commercialization of personality right into the framework of personality right, and concern with tort liability law relief system to protect.The third part analyzes the present legal protection of commercialization of personality right in China. This part elucidated our current developing situation of commercialization of personality right from the aspects of legislation and judicature. Then we reviewed the insufficient of the protection and analyzed the causes of the problem. Current legislative and judicial status shows that the legal protection of commercialization of personality right in China lack of systematic and comprehensive rules.The fourth part is to find out a Chinese domestic civil law protection of commercialization of personality right. We established the institution from legislative protected mode, right exercised rules, legal relief ways and so on. Firstly, in the future civil law code, we should take the legislative model that setting the personality right law into an independent title and setting a specialized chapter to stipulate the problem of personality right commercialized, and combine with Tort Liability Law and some other legal system to protect it together. Secondly, in terms of specific rules of exercising rights, author thought only in the condition that the personality elements could be carrier, exist commercial value and be permitted by ethical idea, the personality right could be used for commercialization. It can be used both by the subject themselves and by others who were accredited. And it is limited by personality of autonomy, freedom of expression, exhaustion of rights, public order and moral. Author recognized the property interest in commercialization of personality right can be transferred and inherited. Finally, this part consummated the relief rules relate to the commercialization of personality right been violated. On the cognizance of infringement, we apply doctrine of liability with presumed fault. On the civil redress measures, we apply property damage compensation, mental damage compensation, ceasing the infringing act, extending a formal apology, eliminating ill effects and other liability forms.