On The Compensation For Tort Damages Of Personal Rights And Property Interests

Behind the life phenomena of "fans economy" and "celebrity selling",it is actually the embodiment of the property interests of personality rights.The person can realize the commercial utilization of the personality elements by the reasonable arrangement and control of the personality elements such as portrait,name and even privacy,so that the personality right also has the property interest.Therefore,the infringement of the right of personality involves not only spiritual damages,but also property damages.It can be seen from the development history of the theory of property interest of personality right that the scope of protection of the property interest of personality right should be an open but bounded system.In view of the characteristics of the property interest infringement of personality right at this stage,this paper mainly discusses the identity property interest infringement of personality right such as portrait and name.On the subject of the claim for compensation for the damage to the property interests of the personality right,this paper mainly discusses the rights of action of the deceased's personal property interests and the infringement of the personal property interests under the permission.This paper holds that the property interests of the personality elements of the deceased are generally enjoyed by their close relatives,who have the right to claim damages.When the property interests of personal rights under license are infringed,we should learn from the protection mode of the right of action of intellectual property,and through the interpretation of "civil rights and interests" in Articles 1 and 2 of the tort law,endow the exclusive licensee(such as the brokerage company with contractual relationship)with independent right of action,while for the general licensee of personal rights,there is no right of action.The core issue of this paper is the determination of damage and the specific standard of compensation for damage.The form of the infringement of the property interests of personality right is that the infringer makes commercial use of the personality elements of the obligee without authorization.As the property interest ofpersonality right belongs to intangible property,which is non conflict and non exclusive,there may be multiple violations at the same time,and the existence of violations does not affect the obligee's exercise of personality right.Theory and practice show that if the traditional "difference theory" is adopted,it is usually difficult for the obligee to prove that there is a calculated difference damage,that is,the actual loss,which leads to the claim of damages can not be supported by the court.Therefore,in order to overcome the theoretical defects of the traditional theory of difference,the concept of damage should be revised to the theory of state difference with the help of the view of "normative theory",that is,in principle,as long as the interests of the personality rights and Properties Protected by law are infringed or the interests of the state are different due to the damage,it constitutes legal damage.The theory of state difference can not only overcome the difficulty of identifying the damage under the theory of calculation difference,but also exclude the increase of property interest of personality right caused by infringement from the scope of offsetting profit and loss with the help of the concept of "normative damage".In the standard of compensation for damages,due to the lack of a unified and clear standard of compensation for damages,there is a large difference in the amount of compensation for damages between cases,and it is very easy to cause the court to omit important measurement factors in discretionary compensation.Since the two standards of actual loss and infringement profit compensation stipulated in Article 20 of the tort liability law are rarely used in practice,and the amount of damages in almost all cases of infringement of personal rights and property interests is determined by the court at its discretion,this paper holds that the construction of the standards of damages for infringement of personal rights and property interests should focus on discretionary compensation.The amount of discretionary compensation for the infringement of property interests of personality right should be determined based on the objective value of personality elements and combined with other cases.In the end,this paper argues that there are significant defects in the prevention function of the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation forthe compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation for the compensation.Therefore,in order to punish the malicious infringer and realize the preventive function of damages,we should refer to the intellectual property protection mode of our country and establish a punitive compensation system.