| Although it has recognized that the deceased person's personality should be protected by law both in practice and theory in China,the people's courts at all levels have been zigzagging over the direct and indirect protection model of the deceased's personality interests.The root of this disagreement lies in the fact that our country's legislation is not clear about the object of protecting the personality of the deceased and the position of the claimant's subject is unknown.It is true that citizens lose their legal capacity and do not have the status of the civil subject.However,personality and legal capacity are not the same.Personality includes positive part and negative part.Death only deprives positive personality while negative personality still exists and it should be protected by law.After the promulgation of the “General Principles of Civil Law”,the judicators can fill in the existing legal loopholes through the interpretation of Article 185.Close relatives of the deceased can use Article 185 of the General Principles of Civil Law and Articles 2 and 6 of the Tort Liability Act.Paragraph 1 and Article 3 of the Judicial Interpretation of Mental Injury Compensation as the basis for claiming rights and directly apply legal norms to protect the personal interests of the deceased.Through theoretical argumentation and examination of legislative intention,value supplementation and comparative law,China should establish a direct protection model for the personal interests of the deceased person.Referring to the provisions of the agency system,the close relatives of the deceased should be the subject of the right to request,and further stipulate the position of the right-of-request when there is more than one close relative.In the process of the compilation of China's future civil code,the interests of the deceased's personality can be incorporated into the personality right protection system,and further improvements can be made to the system's construction. |
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