Civil Law Protection Of Hero Martyrs Personality Interests

With the continuous improvement of China’s legal system,the legal protection of the personal interests of heroes and martyrs is becoming more and more specific.Article 185 of the general principles of civil law in 2017 and the law on the protection of heroes and martyrs implemented in 2018 have made legislative provisions on the personal interests of heroes and martyrs,but there are still some issues unclear or controversial in the application of specific laws in theory and practice,it is worth exploring.The paper is divided into six parts.The first part is the definition of the meaning and scope of heroes and martyrs.Different scholars have different opinions on the meanings and scope of heroes and martyrs in Article 185 of the General Principles of Civil Law,analyze the rationality of various opinions,and clarify that heroes and martyrs belong to a parallel relationship.The scope is those who have made outstanding contributions to development and progress of the country and society and have given precious lives since modern times.The second part is the theoretical basis of the protection of heroic martyrs’ personal interests.This paper analyzes the connotation and reasons of the three existing theories on the protection of the personal interests of the general dead.The biggest difference between the personal interests of the heroic martyrs and the personal interests of the general dead is that the objects protected by the law on the protection of the heroic martyrs include two aspects: the personal interests and the public interests.The personal interests of the heroic martyrs stipulated in article 185 of the general principles of civil law have both private interests With the dual attributes of social public interest,it is more reasonable to adopt the theory of protecting the rights of close relatives and taking into account the protection of public interest.The third part is about the plaintiff’s qualification and order of the action of the hero martyr’s personal interest infringement.Although the law clearly stipulates that the near relatives of heroes and martyrs and the procuratorate can file infringement litigation.However,in practice,there are different opinions on the scope and order of relatives.It is clear that the scope of the near relatives of heroic martyrs is the scope of equal relatives stipulated in the civil procedure law,and there is no question of order in the inheritance law when bringing a civil action.The judge should determine the appropriate plaintiff based on the principle that is most conducive to protecting the infringed.At the same time,it is clear that the procuratorate should exhaust other means of relief,but if the private interest litigation brought by close relatives can not safeguard the public interest at the same time,the procuratorate and other public prosecution departments can bring public interest litigation on the premise of their close relatives.When the procuratorate and other departments file public interest litigation,the court shall allow the near relatives to request compensation for mental damage.The fourth part is to determine the responsibility of infringing upon the personal interests of heroic martyrs.The civil liability for infringing upon the personal interests of heroic martyrs is mainly to stop the infringement,eliminate the influence and apologize,and only their close relatives can claim compensation for mental damage.When their close relatives file a lawsuit for private interests,they should take the maintenance of social public interests as an important consideration.It is suggested that the procuratorate and other public prosecution departments can request punitive compensation to increase the cost of the infringer’s violation of the law and strengthen the punishment.The fifth part is to define the protection period of heroic martyrs’ personal interests.There are no clear provisions on the protection period of the personal interests of heroic martyrs.Different provisions should be set according to the different objects of protection.As the personal interests of heroes involve the maintenance of public interests,the protection period should not be set for their spiritual interests and property interests with potential commercial value;for property interests with existing commercial value,the protection period of 50 years after the death of heroes can be set with reference to the relevant provisions of the copyright law.The sixth part is the conflict and coordination between the protection of heroic martyrs’ personal interests and freedom of speech and academic freedom.The main conflict is that some so-called scholars question the great deeds of heroes and martyrs under the guise of exploring historical truth,and take freedom of speech and academic freedom as defenses.Based on the analysis and comparison of the rationality of coordination methods in different countries,according to China’s national conditions,it is suggested to adopt the Reconciliation Method in Taiwan,first of all,distinguish the statement of fact and the expression of opinions in the statements made by the actor.For the statement of fact,if the infringer knows that the facts are false,he shall bear the intentional tort liability,and fails to perform the reasonable duty of care to verify the facts If the facts are true or have done a reasonable obligation of verification,the actor’s subjective value judgment is irrelevant to the authenticity,as long as the expression of opinions is not illegal and does not have insulting words,under the premise of applying the principle of appropriate comment,the actor should be responsible for the tort liability of negligence,even if the opinion is very mean,it can not be regarded as infringing others’ reputation.