The Study Of The Legal Protection Of The Commercialization Of Personality Rights In China

With the development of market economy,economic globalization and diversity are affecting people's lives at all times.In order to attract consumers to come to consume,businessmen often use the names and portraits of natural persons in commercial advertisements for commercial propaganda.The trend of commercial use of personality rights is more and more obvious.However,our country does not recognize the commerciality of personality right,that is,the economic value contained in personality right is not adequately protected.Illegal businessmen often make commercial use of the personality mark of the obligee without the permission of the obligee,which will damage the economic interests contained in the obligee's personality right.The compensation that the obligee can get is often only compensation for moral damage.At the same time,the compensation that the obligee can get can not fill in the damage that he actually receives.At this time,it is not difficult to see the shortcomings.Firstly,in our country,compensation can only be obtained if the spirit suffers intolerable damage,and the "intolerable damage" here is often difficult to prove.Secondly,the actual economic damage suffered by the obligee is often higher than the compensation for the spiritual damage that can be obtained,which will violate the principle of filling in civil liability.It is unfair to the obligee.The commercialization of personality right is not an independent right,it is included in personality right.Recognizing the commerciality of part of personality right only enriches the connotation of personality right.The first part of this paper introduces what is the commercialization of personality rights,and introduces the reasons and objects of the commercialization of personality rights.The second part demonstrates its legitimacy: Firstly,the author expounds the social basis of the commercialization of personality rights from four angles: the objective requirement of social progress,the necessity under market economy,the specific demand of real life and the product of the growing development of mass media;secondly,it introduces the labor theory,preemptive theory and utilitarian owner of property rights.The theory of righteousness and personality is used to analyze the theoretical basis of the commercialization of personality rights.Thirdly,to recognize the commercialization of personality rights,we should recognize the economic value of some powers and functions of personality rights,and then analyze the economic value of the commercialization of personality rights through the analysis of resource allocation effect and incentive effect.Finally,the author further analyses the constitutional basis and personality law of the commercialization of personality rights.According to the contract law,the legal basis for the commercialization of personality rights is analyzed and demonstrated.The third part analyses the legal protection provided by personality law,intellectual property law and anti-unfair competition law for the commercialization of personality rights and the main shortcomings.The fourth part introduces the legal protection provided by the United States,Germany and the United Kingdom for the commercialization of personality rights,and analyses the Enlightenment of foreign legal protection models for the commercialization of personality rights to our country.Whatever the way of right protection,there should be some restrictions on the protection of the obligee.Therefore,the author analyses the restrictions on the commercialization of personality rights from three perspectives: public order and good customs,rational use and exhaustion of rights.Finally,the author puts forward the main countermeasures to improve the legal protection of the commercialization of personality rights in China,with a view to providing some useful suggestions for the formulation of the civil code.