Study On The Civil Law Protection Against Infringement Of Individual Credit Right

Since 2010,the concept of "credit right" has been widely used in judicial practice,and cases of infringement on individual credit right are common,which are becoming more and more serious.A search for "credit rights" on the Chinese judicial documents website shows that 85 cases have been concluded and made public online.In 2010,there was only one credit right case,but in 2017 and 2018,there were 28 and 18 cases respectively,showing a rapid growth trend.At the same time,through the retrieval of the above cases,it can be seen that in judicial practice,cases of infringement on individual credit right take various forms,mainly including the following: information provider or user provides and USES others’ credit report in bad faith,and thus causes others’ credit right to be infringed;The personal credit right will also be infringed upon if the credit investigation institution makes wrong registration or wrong disclosure of personal credit record.In judicial activities,the court mistakenly blacklisted the person subject to execution in the process of compulsory execution,restricted high consumption and other behaviors,which will also cause infringement on individual credit rights,making the infringed lose precious opportunities and more economic benefits.At the same time,it is not difficult to find that most cases are based on the infringement of the right of reputation dispute for the case,but the concept of credit rights is rarely mentioned.That is because,our country current laws and regulations did not stipulate credit authority this one right explicitly.There are always debates on the protection of credit right in theory and practice.There are huge problems in the legislation,judicature and law enforcement of the protection of credit right in China.(as this article only discusses individual credit rights,it does not describe the credit rights of legal persons,so all credit rights in the following article refer to individual credit rights.)This article will with the present situation of our personal Credit right protection and personal credit right protection faced the huge challenge as a starting point for legal analysis,to explore the problem of personal credit right protection in our country,introduce credit right incarnations,credit right nature and Britain,the United States national regulations for protection of personal credit right to introduce credit right protection system,and puts forward Suggestions on compiling specific provisions of the civil code in China,to establish personal credit right protection system in our country,perfect the violations of the civil law protection of personal credit right.This paper is divided into the following four parts.Part one: the predicament of individual credit right protection in civil law.According to the cases of gazette and different judgments of the same case,this paper reveals the forms of expression of infringement on individual credit right in practical operation and the judicial application rules in the practical field,and summarizes and summarizes the existing problems in the protection of individual credit right in civil law: the lack of legislation on credit right;There is no perfect credit right protection system;Judicial organs to make a judgment on the same case different judicial chaos.Part two: the origin and development of credit right.This part mainly introduces the concept of credit right,clarifies the general concept and legal concept of credit right.In this part,the emergence of credit right is introduced.Credit right sprouted in ancient Rome,and then it was clearly stipulated in article 824 of German civil code.Since then,credit right came into being.The third part: credit right is the son of personality right.Academic circles argue endlessly about the character of credit right,cannot unite all the time.At present,there are three main theories about the nature of credit right: personality right theory,property right theory and mixed right theory.There are three different theories of personality right: personality right ontology,reputation right and commercial personality right.The author thinks that credit right is a right of personality and a sub-right of personality right.credit right is not so much a mixed right that contains both personality attribute and property attribute,but a kind of personality right,which has two different forms--both the expression of personality right and the expression of property right.Part four: the legislative protection of individual credit right.credit right is an independent right of personality,which belongs to the right of personality with the right of reputation and the right of privacy.credit right,right of privacy and right of reputation not only have overlapping connotation and extension,but also have its unique meaning.credit right becomes a sub-right of personality right,which is helpful to perfect our credit legal system.To clarify the scope of responsibility to protect the interests of credit;Be helpful to unify judicature judgment,cogent safeguard individual credit right.Therefore,credit right,like reputation right and privacy right,should be stipulated in the civil code as a right of personality.For the legislative protection of individual credit right,fundamentally speaking,it is necessary to bring credit right into the scope of laws and regulations and establish and protect it in legislation.On the issue of credit right legislation,we should adopt the mode of direct protection to protect credit right legislatively.The fifth part: the construction of individual credit right protection system.We should not only stipulate the credit right in the civil code,but also stipulate the behavior of infringing credit right and the corresponding responsibility in the tort liability law,and stipulate the constitutive elements of the tort liability in the case of infringing individual credit right.In the individual credit right infringement dispute,should adopt the strict fault responsibility.In terms of the way of liability bearing,it should be diversified,which is not only limited to making an apology,restoring the status quo and compensating for losses,but also to strengthen the compensation for mental damage.In addition,the above mentioned ways of bearing tort liability can be applied simultaneously.The protection of credit right should also be reflected in the burden of proof.In the case of infringement of individual credit right,the rule of inversion of burden of proof should be applied to break the traditional distribution rule of burden of proof,and the injector should provide evidence to prove that he has the exemption from liability stipulated by law and that he has no fault to be exempted from tort liability.To perfect the individual credit right system,we can start from credit institution and individual bankruptcy system.We should establish a sound credit right protection system,strengthen supervision over credit reporting agencies,establish credit rating standards,integrate credit reporting agencies’ resources,establish an information sharing platform,and improve the supporting system for individual credit right protection.At the same time,a personal bankruptcy system was established to comprehensively guarantee the credit rights of every natural person.Personal bankruptcy is not only a system of losing the right of individual credit,but also a system of restoring the right of individual credit.If a person abuses its credit authority,damage others credit authority,its will be punished accordingly measure,lose credit authority,but if this person that lose authority passes legal time,accord with legal condition hind,can restore its credit authority through individual bankrupt system again.The system of personal bankruptcy exemption from liability and recovery of rights endows the debtor with new life and fully guarantees the credit right of every civil subject.