Probe Into The Application Of "Sound Protection Clause" In "Civil Code"

Under the background of lack of experience in adjudication of voice disputes in judicial practice,similarities but differences between "voice" and "portrait",and different ways of sound protection in the field of comparative law,article 1023(2)of civil Code has become the core of sound protection,and it is very important to explore its application.As the provision is relatively simple to set up,it is faced with the problems of unclear legal definition of "sound",different understanding of "reference application",unclear scope of "relevant provisions on portrait right protection" and unable to fully meet the needs of sound protection.After referring to scholars’ opinions on legal definition of sound and legal definition of portrait,it can be concluded that sound is an auditory impression of a specific natural person that can be recognized reflected on a certain carrier by means of recording and video recording.Its subject is natural person,the key lies in the identification,the essence is a kind of auditory impression,that is,protected is pure sound itself.In addition,this article conforms to the characteristics of the quasi applicability clause,which belongs to the analogical application of authorization,and cannot be equal to "application".It should be selected from the object of reference and then modified according to the characteristics of sound to serve as the applicable basis of sound interests;The scope of "relevant provisions on portrait right protection" should be interpreted in a narrow sense and limited to article 1018,Clause 1 to Article 1022 of the Civil Code.Therefore,the sound protection can refer to the applicable specific rules including the right of portrait,the way of infringement of portrait right,the reasonable implementation of portrait and portrait licensing contract rules four aspects.In view of the voice protection needs that cannot be met by this article,first of all,personality right can be generally stipulated as the legal basis to recognize the deceased’s voice interests and the rights of voice interests including the right of claim;For the parts that cannot be followed by law at present,the theory of personality right can be introduced to supplement and provide protection ideas,and the quasi-common theory of personality interest can be applied to protect collective voice and the theory of protection limitation of personality right of public figures can be applied to protect public figures’ voice interests to some extent.