| Articles 109,110 and 111 of the latest general principles of civil law stipulate the protection of the right of personality by oath,which shows the firm attitude of the state to protect the right of personality.The second review of the draft of civil code published in 2019 can be said to have made great progress in the protection of personality rights.The draft of the civil code adopts the way of setting up the right of personality separately,which specifically regulates the civil subject’s rights of life,health,body,name,portrait,voice,personal information protection,etc.However,in the protection of the right of personality,the draft of the civil code is conservatively bound to stop the infringement,remove the obstruction,eliminate the danger,eliminate the influence,restore the right of reputation,and generally stipulate that the victim has the right to request the actor to bear the civil liability.It can be seen that the draft of the civil code does not break through the barriers of the protection of spiritual interests by personality rights,and there is no specific way of relief for damages caused by infringement of personality rights.The commercialization protection of personality right is the inevitable requirement of the commezation process of right.The rapid development of socialist market economy is accompanied by the renewal and application of Internet 5g technology.The modern Internet communication mode is quite different from the traditional paper media communication mode.In such a context,the right of personality with personality signs has great economic value.These special personality signs,such as portraits,voices,names of public figures,can directly establish a trust relationship between consumers and businesses.In addition,citizens’ personal privacy and personal information have their economic value in the era of big data.It is precisely because of the profit-seeking nature of the market economy,some lawbreakers have made use of the defect of the protection of the right of personality for convenience,and made up the idea of embezzling and falsely using the personality mark with great economic value.However,it is often difficult for the victims to get effective relief through judicial channels after their personal rights are infringed.Under the background of the drafting of the civil code,the theoretical basis for the study of the legitimacy of the of personality rights comes from Locke’s labor theory,Kant’s theory of personality autonomy and free will theory,as well as Hegel’s theory of personality property rights.Based on this,we have the theoretical basis of commercialization protection of personality right.Through sorting out,it is found that the attribute disputes of commercialization of personality right mainly focus on the theory of intangible property right,the theory of new intellectual property right,the theory of commercial personality right and the theory of expansion of personality right.To clarify the legal attribute of the commercialization of personality right is the basis of constructing the protection framework of the commercialization of personality right.The author thinks that the theory of "the expansion of the right and ability of personality" is more in line with the actual situation of the existing legal system of our country.The adoption of this theory can solve the problem of the protection of the right of personality within the existing framework of the draft of the civil code.The traditional protection of civil law can not meet the needs of the subject of personality rights and the development of market economy.Relief is closely related to protection.The traditional civil law theory limits the rights and interests of personality right to the field of spiritual interests.Only the compensation for spiritual damage reflects the property rights and interests,and does not form a perfect protection and relief system.In contrast,western developed countries have formed relatively perfect legislation and judicial precedents on the protection and relief system of personality rights,such as the dual protection mode of the United States and the single protection mode of Germany,which are of great significance to us.The report of the 19 th National Congress of the Communist Party of China puts forward that "the people’s personal rights,property rights and human rights should be protected",and China’s Constitution clearly stipulates that "the human dignity of citizens of the people’s Republic of China shall not be violated".It can be seen that at the national level,the system basis has been provided for the commercialization protection of personality right through the top-level system design.Therefore,China should improve the relevant legal system in the field of civil law as soon as possible,face up to the shortcomings of legislative protection and judicial protection,establish the "unitary protection mode",clarify the subject scope of commercialization protection of personality right,and give commercialization of personality right Transfer and inheritability,establish the standards and methods of tort compensation.At the same time,we should restrict the personality right.The problem of commercialization of personality right is increasingly prominent,which shows the prosperity and activity of socialist market economy in China.Usage and governance for market economy... |
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