A Contextual Analysis Of The Statutory Elements Of An Infringement Of Portrait Rights

As a basic right of personality,portrait rights is citizens personal external image's reproduce,its highlight personal characteristic,and its also reflect human dignity.The protection of portrait rights is reflected the importance of dignity and characteristic,the importance of someone who defend his personality benefits.Different from traditional right of personality,portrait rights contains spiritual interests in addition to abundant property benefits.With the development of media and technology and the feature of commercializing,the portrait of a natural person may be placed on each field of vision.It may bring about the dispute,but there are differences between theory and practice to the constitutive requirements of portrait rights.It may lead to uncertain of the law field to a certain degree,it is harmful to the protection of the natural person.Therefore,the author attempts to start with the judicial practice,based on the effective judgment of the relevant case as the analysis object,and on the basis of classification and summary,clarifies and removes the surface deviation in the same legal domain in different contexts.Provide a clearer reference path for the identification of infringement of portrait rights and potential rights relief.Firstly,the article introduces the debate on the constituent elements of the portrait rights infringement over the years.The diversity of academic elements refers to the indentification of the infringement of the portrait rights in the real world.It reviews the applicability of the statutory elements and the root causes of the disputes,providing an argument for the following argumentation.Secondly,select 927 cases that filed as a result of the dispute over the portrait rights in 2017 and passed the substantive trial,based on this,and focusing on the substantive judgments in 121 of there cases,screening and examination of the application of statutory requirements in the judicial practice,comparison and evaluation of the actual relief effects and dispute resolution functions of the statutory two requirements,thus completing the applicability of the statutory two requirements.Finally,for the potential violation of portrait rights by other ways of using portraits that do not constitute a pattern of infringement of portrait rights,attempts are made to explore the path of relief based on general personality rights to eliminate protection gaps.Concerns over the lack of applicability of the statutory two requirements.The article has three parts except the prelude and postscript.Part one:The overview mainly on the portrait rights in theory.The infringementof portrait rights' s constitutive requirement is without someone's permission and use the portraits for the purpose of profit by law.But this legal requirement raised objection by academia,and they think the purpose of profit dose not be a requirement of infringement of portrait rights.The argument also made the question produced the cognitive errors between theory and practice.Part two:Mainly based on data analysis to explain the infringement of portrait rights' s certified in practice.By consulting and collecting a large number of cases,reach the conclusion of the generally applicable of two legal requirement,at the same time confirmed the adaptability of two legal requirement in practice and theory.Part three:Mainly propose remedial measures on the legal requirement of protection can not be included in the existing legal system,including the applicable basis and feasibility of the remedy.