Research On Civil Law Protection Of Hero Martyrs' Personality Interests

In recent years,behaviors of violating the dignity of the heroes and martyrs have taken place sometimes.Before the implementation of<The General Rules of Civil Laws>,the People's Court provided the legal protection for the interests of the heroes and martyrs,etc by the regulations of<The Tort Liability Law>and the related regulations of the judicial interpretations.However,this kind of protection method has obvious weakness and deficiency,of which the chief demonstration is that when there appears the situation of“protection absent”,namely when the relatives of the heroes or martyrs do not have the abilities of protecting them or be lazy in doing thus,the goal of protecting the dignity and interests of the heroes or martyrs will not be realized.After the formal issuing of<The General Rules of Civil Laws>,the No.185 item of it has specifically regulated in special items the protection of the heroes'or martyrs'names,portraits,reputation and honors,but this item is too general,abstract,so that the academic circles still have had many disputes and different opinions of it.Therefore,this essay is written to provide a detailed decoding of the 185^th item of<The General Rules of Civil Laws>and search for the most reasonable and appropriate explanation in order to adopt to the behaviors of violating the dignity of the heroes and martyrs,and ensure that these behaviors would be correctly judged from the perspective of the civil laws.Referring the above background and the current social situations,as well the regulations of our civil laws,this essay will make the comments from the following perspectives towards the detailed understanding and applications of this item:Part one begins with the case introduction of the“Typical cases of protecting the personality and interests of the the heroes and martyrs,etc”issued by the Highest People's Court,and make the conclusion of the necessity of protecting the personality and interests of the the heroes and martyrs and pointed out the various existing deficiencies in protecting the personality and interests of the the heroes and martyrs;Part Two is theoretical exploration of protecting the personality and interests of the the heroes and martyrs.Through analysis and discussions of various schools of thoughts,their strength and weaknesses,so as to provide more solid theoretic support for the legitimacy of protecting the personality and interests of the the heroes and martyrs.Part Threeis the extended detailed comments of the specific understanding of this item.First,the author makes a reply to whether this item of law violates the equality principle of the civil laws,and its relationship with freedom of speech and freedom of academic researches so as to coordinate with each other.Second,make some explanations of the meaning of“the heroes and martyrs”,and clearly explain that this term should include the heroes and the martyrs and even explain clearly the word,”etc”in the item of the law.Next,make some analysis of the185^th item of<The General Rules of Civil Laws>,and point out this item covers not only the names,reputation and honors,portraits of the group,but the unmentioned objects of personalities like the privacy,and else?the remains of the bodies,the memorial buildings,etc?should also be equally protected by law.Finally,there is some discussion about whether“violates the social public welfare”should be act as the element of bearing civil responsibilities,while the academic circle has two points of view:the positive and the negative one.Besides,based on the feature of abstractness and fuzziness of the concept of public interest,this essay thinks we should adopt the way of interest balancing to make some value judgments of the behaviors of violating public welfare so that the comparisons of various abstract interests will be more objective and clear,and finally,we come to the conclusion that the protection of the social public interests.The last part of this essay makes the suggestion about how to perfect protecting the personality and interests of the the heroes and martyrs,on the basis of the current protection of the personality and interests of the the heroes and martyrs in China,and hopes to strengthen the effectiveness of Item 185 of<The General Rules of Civil Laws>in legal practices,so that we can better solve the related problems in legal practices.