China's Provisions On Law Application Of Infringement Of Personality Rights Through Internet

In recent years, computer and network technology has developed rapidly. They bring great convenience for people's work and life, but also provide new routes and methods for the criminals to commit illegal acts, of which the infringement of personality rights through the network or other ways have occurred ocassionally. Compared with usual ones of tort, those ways of infringement through internet have more great bad impact on the infringed, spread more quickly, greatly influence the social assessment of the infringed, and result in greatly negative consequences for their work and life. So countries recent civil legislation have stipulated different burden of law of the infringing act. And infringing acts of personality rights through the network or other means, when related with the law of two or more countries or legal family, with different countries or legal domains varying provisions, even largely different, and it will have great effects on rights and obligations of the parties involved in the foreign infringement relationship while applying law of different countries or jurisdiction. Therefore, the recent private international laws of some countries or legal familys have made some provisions on the law application of this kind of infringements. Based on the real facts of the widespread infrigements of personality rights through the internet and other ways in current society,learning form recent advanced legislation and pracitce of private international law in international community, the People's Republic of China foreign-related civil relations law applicable law stipulates the rules of law applicaton of foreign-related infringement in the article of 46. This is the milestone legislation in the legislative history of our country' s private international law, and it displays the basic position of respect and protection of rights, but the item of 46 has such flaws: only one law to apply, that' s just the law of habitual residence the infringed could be used in the foreign-related tort,neither condersing the autonomy of the sole party of the infringed, nor taking the widely used doctrine of proper law in the private international law in many countries. In view of the above, this thesis uses the privisons on the law application of infringement of personality rights through internet as title, and it first tells the basic theory detailedly;then analyses the essential characteristics and major demrits of the law application of the cybertort of personality rights, and provides some advice on the improvement of the provisions of cycertort law application in China, hoping to help the amendment and legislation perfection of law application of infringement of personality rights.The dissertation is composed of five parts along with introduction.The first part analyzes the basic theory of infringement the rights of personality through the network or by other means. First, the basic meaning of personality rights is defined. That is, the right of personality refers to the civil inherent rights enjoyed exclusively by the civil subject, with the interests of the object as the object, necessary for personality independence of the civil party. Second, the give a difinition of violation of personality through the network. The so-called behavior of aggressions on the personality rights through the network means the network user or the network service provider harms the personality rights of civil subject by using to bear the related civil liability by using the internet to upload, download and transload the information through the internet, and has to bear the related civil liabilities for those actions for his faults or by the special provisions of the law. Then Finally, analysing how to identify violations of personality rights through the network or by other means.The second part elaborates on the legislative basis of the provisions of our country on the application of the law through the internet or by other means against the right of personality. That is, the above-mentioned provisions of our country are based on the legislation and academic claims of the international community on the application of the law through the internet or other means against the right of personality, and meanwhile considering our previous legislation and practice on the issue. That is, such foreign-related infringement of personality rights mainly applies the infringed person's personal law.The third part elaborates on the basic characteristics of China's providement of application of the law of the infringing upon the right of personality through the network or other ways of. China's made open provisions as to scope of content of personality right; and takes infringer's habitual residence law as the only law of such foreign-related tort, that is, using the personal law, and it meanwhile adjusts and improves the application of personal law, neither using the infringer's national law as the law of such foreign-related infringement law, nor taking his domicile law; completely ignore the unilateral autonomy of the infringer, that is to say the infringer does not enjoy the rights to choose the law by himself.In the fourth part, analyses the main shortcomings of the law application of infringement of the personality rights through the network or other means. The above provisions of our country have at least the following demrits: only one applicable law;completely ignoring the autonomy of the infringer; no proper consideration of the law of place of tort; completely ignoring the proper law of tort which is widely adopted by the relevant international private law legislation.The fifth part elaborates the idea of perfecting the provisions of the law application of infingements of personality rights through the network or by other means. The above provisions of our country could be improved as the following: increasing the optional rules of choice-of-law to regulate the law application of such foreign-related tort, to enhance the flexibility of the law and thus to facilitate the timely and impartial resolution of disputes; using the law of the infringed sole autonomy as one of the laws of issues;taking into account the law of place of tort; considering the application of tort proper law.