Study On The Determination Of Infringement On General Personality Right

General personality right is a supplementary personality right intended to protect general personality interests that haven't been subsumed by specific personality right.With the enactment of the "General Principles of Civil Law",the discussion of the relationship between article 109 and general personality right makes general personality right become a hot topic again.As a matter of fact,as early as 2008,the supreme people's court adopted general personality right as an independent cause of civil cases.Whatever the scholars' interpretation of article 109 is,nobody can deny the fact that the system of general personality right already exists in practice.Because of the complexity and particularity of general personality right,the recognition of it can not solve the confusion of judge when dealing with relevant disputes.At present,there is no mature theory on how to determine the infringement on general personality right.The absence of corresponding regulations in legislation makes it difficult to effectively realize the purpose of general personality right.The determination of infringement on general personality right is based on four elements of tort theory,object-guidance theory and the principle of public order and good custom.In the practice of judges' determination of general personality right infringement,tortious act,fact of damage,fault and causation are closely related as a whole.And the legal application method adopted by judges in making judgement is also affected by it.The uncertainty and complementarity of the principle of public order and good custom exactly coincide with the characteristics of general personality right.The object-guidance theory showed early in the judicial practice of the determination of general personality right infringement and still exists now.Judges in our country are also deeply affected when they deal with the cases of generalpersonality rights disputes.Based on four elements of tort theory and object-guidance theory,Chinese judges usually adopt the method of law application mainly based on benefit measurement and supplemented by legal fiction at present.General personality right is uncertain,thus judges need to seek a proper balance between personal interests representing the two sides of freedom.In essence,the process of determining the infringement of general personality rights is the process of the compromise between the stability of law and legitimacy,which makes benefit measurement indispensable.In addition,the judge is influenced by the object-guidance theory and,out of conservative considerations,sometimes adopts the method of legal fiction to formulate the relevant personality interests as a specific personal right to make a judgment.From the long-term perspective of the development of general personality right system,the legal fiction only has a certain degree of appropriateness,and is relatively tortuous and obscure.While benefit measurement is more direct,which is the most important legal application method in the determination of infringement on general personality right.The current model of the determination of infringement on general personality right in China is too subjective,while the "medium-level abstract" theory from abroad reflects the respect for objective elements,and the injection of objectivity into the subjective is worthy of our reference.When dealing with disputes of general personality rights,judges often need to break the established balance of legislation and re-establish a new balance in individual cases.This process can easily lead to subjective arbitrariness.In modern countries ruled by law,it is unbearable to judge purely by subjective standards of judges.To explore relatively objective standards or frameworks is the need for the continuation and development of general personality rights and also the premise to guarantee reasonable judgment.In addition,according to Germany experience,it can be seen that "if the skin does not exist,the hair cannot be attached".To develop and improve the judicial practice of the determination of general personality right infringement,it is necessary to clarify the status of general personality right in basic civil law.It is advocated that the general provisions of civil law article 109 should be clarified,so as to lay a solid foundation for general personality right and encourage judges to play an active role in judicial practice.In addition,exploring the relatively objective standards to restrain the excessive subjectivity is the premise to ensure reasonable judgments.Therefore,on the one hand,it is necessary to further clarify the relevant rules of constitutive elements and causes of hindrance so as to make them more suitable for judicial practice of determination of general personality right infringement.On the other hand,we should excavate and refine judicial practice materials on the basis of sorting out cases so as to establish "medium-level abstract" rules.By these rules controlling interest measurement to a certain extent,and restricting subjectivity,as much as possible to guide judicial activities.