On The Application Of Law Of The Content Of The Personality Right

As an important part of personal right,personality right refers to personality interests that are enjoyed necessarily and persistently by the subject in accordance with the law,and aims to protect and realize the equality of personality,personality dignity and fully personal freedom.Personality right originates from the human rights thought of the Western Enlightenment thinkers and has gradually developing with the development of human rights theory.Under the background of modern democracy and the rule of law,the right of personality has dual legal attributes of constitutional rights and civil rights.It is not only a basic political right of citizens in the field of the Constitution,but also an important right of civil subject in the field of private law.It is for this reason that every country has paid great attention to the right of personality.However,due to the influence of national cultural traditions,legal environment,legislative level and different legislative cognition of the same kind of personality interests,there are large differences in national legal provisions on the content and the protection of personality rights which results in conflicts in application of personality rights law.This situation urges countries around the world to draw up laws aimed at resolving conflict of the right of personality one after another.Among them,whether the legislation of the application of law of the right of personality is perfect or not,will directly affect the full solution of the legal disputes of the protection of the personality right.The former is the premise and basis of the latter.On the content of the applicable law of the personality right,the legislation and judicial practice of the main countries in the world show that lex personal shall apply the content of the right of personality,but in view of the differences between their respective legal cultural tradition and the reality of the situation,there are great differences in the choice of the point of contact of the conflict rules and the determination of the applicable law in the relevant countries.However,there are still some defects in the current legislation of our country,which will affect the effective solution of the conflicts of the content of the right of personality and the protection of personality right.Therefore,based on the discussion of the necessity,the point of contact and the applicable law of the content of the personality right,also combined with the analysis of the status quo of China's legislation,this paper puts forward the concrete suggestions to perfect the relevant legislation in china.In addition to the introduction and conclusion,this paper is divided into four parts as follows.The first part mainly explains the necessity of the application of the content of the right of personality.The application of the content of the right of personality has extremely important legal significance,that is,it is not only the inevitable requirement to safeguard the human rights,but also is the realistic need to solve the conflict for the content of the personality right,at the same time is an important prerequisite for effective protection of the foreign personality right too.The second part studies the point of contact for the conflict norm in personality rights that is mainly manifested as nationality,domicile,habitual,residence or habitual residence,which have their own advantages and disadvantages.According to the developing trend of the times,we should consider the specific situation and use multiple links for the choice of the point of contact of the conflict rules of the content of the personality right.That is,we should not only fully respect the nationality and domicile of the traditional junction,but also adapt to the latest developing trend of the habitual residence as a kind of the point of contact of lex personalis,so as to realize the organic combination of the stability and flexibility of the point of contact.The third part studies the applicable law of the conflict rules of the content of the personality right.It is mainly applies to personal law,but there are different legislative models,including which the applicable law of "right of personality" is clearly defined,the applicable law of "personality right" is defined,and the applicable law of "right of name" is only defined.We have the following relevant revelations by comparison of the legislative models of the applicable law,that is,When we determine the applicable law of the conflict rules of the content of the personality right,we should not only pay full attention to China's traditional legal culture,but also should combine the concrete national conditions of our country.The fourth part parses characteristics and defects of legislation of the applicable law of the content of the personality right in our country,and expounds the basic ideas that how to further improve China's relevant legislation through this way.There are many deficiency in the legislation of the application of the content of the personality right in our country as follows:the substantive law provisions relating to the content of the right of personality has not come into being a complete legal system,the existing provisions are relatively simple,fuzzy,and there are loopholes and gaps in the concrete protection system of the personality right;the determination of the personality right is not reasonable,and the habitual residence is simply adopted,without depending on the nationality of the parties and the law of domicile.The shortage of the regulations of the applicable law of the conflict rules of the content of the personality right above in China should be perfected from the following aspects:we should perfect the legal system of the personality right in china to be committed to the establishment of the general personality right;Our future legislation should make more clear and draw up more detail rules for the issues of other specific right of personality including privacy which relate to the content,such as the concept,boundaries of right,and so on,when we improved the content of general personality rights.We should perfect the conflict rules of determination of the applicable law of the content of the personality right,nationality will be the primary point of contact for the determination of the applicable law of the content of the personality right,the habitual residence will act as the supplemental point of contact,and the law of domicile will moderately consider as the applicable law of the content of the personality right.