The Research On The Applicable Law Of Heroes And Martyrs' Reputation Infringement

In recent years,the vicious phenomena like distorting history,insulting and slandering heroes and martyrs with various means have frequently appeared in our society.Under this social circumstances,the newly promulgated "General Principles of the Civil Law of the People's Republic of China"(hereinafter referred to as the "General Principles of the Civil Law")provides special provisions for the protection of the reputation of heroes and martyrs in Article 185.As a new clause in the “General Principles of Civil Law”,the legislative purpose of the article is not limited to the protection of the hero's personality interests,but also to the social ethos,the promotion of socialist core values,and the protection of the social public interests in hero ' s personality.Based on the legislation intent mentioned above,Article 185 of the "General Principles of the Civil Law" for the first time,explicitly established a type of tort liability with the aim of protecting public interests by legislation.This measure in the legislation makes an obvious difference between heroic martyr's reputation infringement and the general deceased reputation infringement in regard of right infringement constitution.At the same time,due to the fact that the theoretical community has not conducted in-depth research on the reputation infringement of heroes and martyrs,the existing legislation that provides special protection for the reputation of heroes and martyrs in China only appears in Article185 of the General Principles of Civil Law.Moreover,the article is mostly a principled expression and lacks specifically applicable provisions,which leads to a greater controversy at the current stage of the academic circle regarding the understanding and application of the article.Therefore,this paper intends to study the legal application of heroic martyrs' reputational infringement from the perspective of interpretative theory.The introduction part starts from the legislative background of Article 185 of the“General Principles of Civil Law”,briefly proposes the topic and briefly reviews the existing domestic and foreign researches on the heroic martyr's reputation tort liability.The first chapter,by means of careful analysis of the controversial issues in the current stage of the academic circle on the "General Principles of Civil Law",this chaptersummed up the key issues of this study.The second chapter,by analyzes the differences between the honorary nature of the heroic martyr and the nature of reputation of the general deceased,to determine that the reputation of the heroic martyr should contain both private interests and public interests and thereby analyzes the both side separately.The third chapter argues that the damage to the public interests is the necessarily constitutive condition for the reputation infringement of heroic martyr.This article argues that social public interests are not absolutely excluded from the scope of the Tort Liability Act,denying that public interest damage is a necessarily constitutive condition for the reputation infringement of heroes and martyrs is neither in conformity with the legislative purpose of this article nor can it be satisfied by the requirements of interpretation of this article.Chapter IV studies the elements of faults in the constituent elements of heroes and martyrs 's reputation infringement.This article holds that heroes and martyrs belong to public figures in the legal sense,and the theoretical community in China believes that the protection of rights and interests should be distinguished.In order to protect citizens' freedom of conduct,the elements of fault in the constituent elements of heroic martyrs' reputation infringement should be limited to intentional or gross negligence.Chapter V defines the scope of application of Article 185 of the General Principles of Civil Law.This article believes that "heroes,martyrs,etc." should be interpreted as "deceased heroes" and "martyrs" on the premise that the "etc." among "heroes,martyrs,etc." would not be similarly explained.The reputation of the "martyr" and "deceased heroes" belongs to the applicable subject of Article 185 of the "General Principles of Civil Law" only when it involves the public interests.Chapter VI clearly clarifies the litigation model and the subject of the right to request in Article 185 of the “General Principles of Civil Law”.This article believes that civil public interest litigation can more properly protect the social public interests involved in the reputation of heroes and martyrs,and the relatives of the heroic martyrs are not required to bring a lawsuit under Article 185 of the General Principles of Civil Law.The form of action is limited to civil public interest litigation,and the People's Procuratorate isthe subject of the claim.Chapter VII demonstrates that "compensation for damages" can be used as a means of assuming responsibility for heroic martyr reputation infringement.This article believes that the application of "compensation for damages" should not be limited to civil private interest litigation."Excessive difficulty for judges" is also not sufficient as a reason to exclude "damage compensation" as a form of liability for public interest litigation.The application of this method can also make the responsibility of the heroic martyr's reputation infringement bear some punitive and preventive measures,as a result,better protect the involved public interests in heroes and martyrs ' reputation.Therefore,"compensation for damages" should be taken as the liability for the reputation infringement of heroes and martyrs.