On "Tort Liability Act," The Review of the Protection of the Right of Personality

First, the general personality right specification missing
DepArtment of personality right to maintain personal autonomy and dignity of human rights responsibility, first recognized by Civil Law, against the state power after the harm, up to the basic constitutional rights. Therefore, the right of personality is both a private right, it is a basic constitutional rights. personality rights as a Civil rights one, as recognized by Civil Law countries. Personality has been divided into special (specific) personality rights and the general personality right, the former refers to the Law expressly provides the right personality, which refers to protect those in the former outside the protection of personal autonomy but with the dignity of meaning and the relationship between the protection of human rights to personal interests. Therefore, the general personality right is a general framework for the right type, in the application of norms should be used as a supplemental 具体人格权.

<<Republic of China Civil Code "" (hereinafter referred to as <<Civil Code ">) section 98-102 shall create the life and health, [1] name, reputation, image rights, honor five rights, this 5 of rights in an academic depArtment is a personality. According to <<Supreme Court on the application of <Civil Code "number of views on the issue>" (hereinafter referred to as "Opinion>>) Article 140," <Supreme Court cases on the Trial of Reputation Interpretation of Several Issues> "(hereinafter referred to as < <defamation cases to explain>>) Article 7, paragraph 3, "<Supreme People's Court on the determination of tort liability for damages the spirit of Interpretation on Several Issues>" (hereinafter referred to as <<tort damages for mental explanation>>) Article 1 paragraph 2, and "Tort Liability Act"> Article 2, paragraph 2, of the provisions of the right of privacy is also a personal one. In addition, under <<tort damages for mental explanation>> Article 1, paragraph 1, moral rights include the right to personal liberty and human dignity. For the general personal right, "<Civil Code"> does not provide, by <<tort damages for mental explanation>> Article 1, paragraph 1, shall be provided. However, judicial interpretation is not legal, it still has not been my general personality right recognized by Law, this is our civil Law system, a major design flaw. To fill this loophole, the doctrine on that, "<Civil Code"> Article 106, paragraph 2, the fault infringement of personal and property shall be liable for damages. here the "physical" refers to the personal rights, including moral rights and the right to identity, shall be construed as legal basis for general personal right [2].

While the general personality right recognized rights are universal, but the lack of a clear legal basis, resulting in legal practice and doctrine for their controversial. <<Tort Liability Act "> as the basic legal protection of civil rights, not this of important rights as expressly provided, this Act can not be said to be a major flaw.

Second, the body has not been recognized the right of
Life is the carrier of human body is an important legal interests of people, however, whether the provisions of the body of civil rights jurisprudence has been controversial matter. <<Civil Code "> Article 98 only provides life and health, without physical representation rights . Some scholars believe that here the life and health also includes the right to the body. [3] <<Constitution of the PRC>> Article 37, paragraph 2, prohibits unlawful search of the citizen body. "Civil Code"> 119 and <<view>> the first section are set against the 146,147 bodily injury results. <<tort damages for mental explanation>> Article 1 explicitly the right of your body as a kind of personal rights that the rights of bodily damages against the spirit can produce. <<Supreme Court hearing personal injury compensation cases on the law applicable to a number of issues of interpretation "(hereinafter referred to as <<personal injury compensation to explain>>) Article 1 explicitly to life, body, health, among them distinction can be seen as evidence of the independence of the body. In judicial practice, the right to the body as a separate cause of action and judgments based approach is also more common. Thus, together, the independence of the body with the right foundation in reality, only poor basic civil law to confirm that their step. Unfortunately, "<Tort Liability Act"> not based on legal development of the practical requirements, the courage to take this step.

In fact, the body as an independent personality right of the right to have their theoretical and practical needs. From comparative law perspective, the body systems are independent of the life and health of individual legal interests with the life, health, tied by separate provisions, including "" German Civil Code >> Article 823, paragraph 1. to the right of the content of the body, its systems to maintain the right to physical integrity of the mission, and obviously the right to health sub-sector, since the meaning should have its independent existence. [4] because of harassment against a person is healthy physical, mental and spiritual normal state, to produce disease. [5] and slapped another slap in the face, invasive of another hair, forcibly kissing the body that are against, but unrelated to health. Of course, the situation often is both against the body is also against health, such as car accident injuries disabled.

Third, the right to privacy was first expressly
General Personality and body with the right of "long-awaited no" embarrassment than to be recognized right to privacy can be considered as <<Tort Liability Act "> rights in the longer list of moral rights is a major breakthrough. << Civil Code "> no privacy regulations. In practice, in 2001 <<tort damages for mental explanation>> before the release, privacy has been under the <<Opinion "section 140," <defamation cases to explain>> Article 7, paragraph 3, as a reputation for protection. in 2001 <<tort damages for mental explanation>> after the release of its article 1, paragraph 2, the perpetrator must be "in violation of public interest, public morality" against another's privacy, victims can receive compensation for moral damage . However, this provision for the protection of privacy is undoubtedly too strict. <<Tort Liability Act "> Article 2, paragraph 2, clearly defined rights of privacy as a civil one, that is before the law of the norms for the lack of privacy protection status of the amendment is also a "moral damage compensation for infringement to explain>> unreasonable provisions of the order out of chaos, so that privacy and other 具体人格权 get the same legal status, personal autonomy and help maintain peace and human rights of self.

Fourth, the theoretical basis for death compensation to be clarified
Death benefit is the right to life against the consequences of the compensation is no different with the general damages, damages should also apply to fill the principles. However, in our country due to a mix of too many irrational factors other than legal science, based on all the natural sense of Justice born equal and fair society as a whole desire to make the discussion of this issue to the loss of a legal science-based platforms for dialogue, a perceptual noise and venting of the exports. [6] our laws, administrative regulations and judicial interpretation of the provisions of numerous death compensation, in the "<Tort Liability Act" enacted before are: <<Civil Code "> 119," <PRC Consumer Rights Protection Law "> section of Article 41,42, <<Product Quality Law "> section of Article 41-44," <PRC State Compensation Law "> 27," <Medical Malpractice Bill>> Article 50, "<industrial accident insurance regulations>> Article 37, "<domestic air transport limits the carrier's liability provisions of" Article 3, "<railway accident investigation and handling of emergency relief and Regulations>> 33," <Supreme People's Court on the hearing of cases involving foreign maritime personal injury damages specific provisions for compensation (Trial)>> 3,4 bar, "<Supreme Court hearing an electric shock on personal injury compensation cases Several Issues>> Article 4," the spirit of tort damages to explain>> Article 9 and the " personal injury compensation to explain>> the first 17-30 articles, and more. these norms constitute a complex system of tort compensation rules death. Overall, the features of the above specifications, do the following summary: (1) The death benefit is divided into property damage (funeral expenses, support payments, death compensation) and mental damages (damages the spirit of close relatives), (2) the number of death compensation differential treatment of urban and rural mining, industry differences in treatment standards. there is the core of the current specification is: how to calculate the compensation for death? it should be "the same fate with the price?" Calculation of compensation for the death of another close relative with the spirit of support payments and related damages, must be considered. In this regard, "<Tort Liability Act" > section 16,17,22 responded article. The following provisions of each of these three make some review.

According to <<Tort Liability Act, "the provisions of Article 16, death compensation, including compensation for funeral expenses and death; Article 22 of the Act, infringement of personal rights and interests of serious consequences, the victim may request compensation for moral damage. For death compensation , "<tort damages for mental explanation>> of article 9, paragraph 2, it belongs to the spirit of damages, but <<personal injury compensation to explain>> Article 17, paragraph 3 (which although the death compensation as compensation for death fee but they have the same meaning) shall be changed to property damage. According to <<Personal Injury Compensation explain>> the provisions of Article 18, 死者近亲属 damages the spirit of another operator. <<Tort Liability Act "> of the above provisions to maintain the <<personal injury compensation to explain>> the position, will be characterized as death compensation of property damages. Xun this idea, and then analyzed <<Tort Liability Act "> the provisions of Article 16, can be found with the" personal injury Compensation interpretation "Article 17, paragraph 3, the biggest difference is that dependents living outside the scope of the death benefit. study of its cause, should be due compensation for death since it is property damage, and this is mainly used for property damage to pay alimony, child support, of course can not be double counting. [7] This is a <<personal damages to explain>> the death compensation and child support parallel double compensation for property damage caused by the chaos of things right. took the problem is , the calculation of compensation for death What are the criteria? This requires compensation for the purpose of death be investigated. If the life expectancy of the deceased mining point of view of compensation, then there is no platform for dialogue, because life is precious, and the dead can not claim compensation for the remaining life . [8] There are two views on this theory: First, compensation for loss of expected income, that is heir to receive the benefits, and second, compensation for dependents of support payments. In fact, the former can not be established. because after death , the loss of legal capacity, can not obtain the right to appeal the property can not be a subject, since no follow-up property of the deceased, and of course there will be no succession. In addition, tort liability from the perspective of the establishment of a causal relationship can not be justified on the perpetrators should be heir with this claim. By contrast, the latter view more persuasive. because they were dependent loss is the most direct, and this is also the common practice of comparative law, which allows dependents to request support offender costs of compensation. [9] Therefore, the calculation of compensation for death should be the actual needs of dependents to determine how much child support. As for its specific terms, it is a statistical problem, but not with the household as simple as the standard [10].

Based on the above analysis, again review <<Tort Liability Act "> Article 17 of the so-called" multi-die case, the same fate with the price. "In fact, this requirement is not new, already exist in China's railway, aviation, maritime accident in this rule has been adopted, but the standard of compensation is different in different sectors. Obviously, the fact that the same damage on the outcome of the deaths occurred the same compensation for death sentenced to practice, just to eliminate inJustice and seemingly give the "emotional "simple and compensation operations, there is no legal basis too. <<Tort Liability Act"> spirit of Article 22 on damages provision does not explicitly 死者近亲属 the spirit of the damages, but because the <<and Mental Damage Compensation explained>> 9 and <<personal injury compensation explanation>> of Article 18 have to confirm this, so as the general terms of mental damages, and its interpretation should include such damages. but still clear that , death of relatives, relatives of which violated human rights, otherwise, "<Tort Liability Act"> Article 22 will not apply to infringement of personal rights and interests because of the clause as a precondition for moral damage compensation. In this regard, I believe that the perpetrators are relatives of the deceased against the general personality right. [11] Links to Research Papers Download http://www.hi138.com five, mental damages should be strictly construed the scope of
<<Civil Code "> no moral damage compensation system regulations, the interpretation of section 120 of the Act that provided for" damages "include compensation for moral damage. [12] Later the system was" the spirit of tort damages to explain> > be a comprehensive and standardized. <<Mental Damage Compensation explain>> the spirit of Article 1-4 of the scope of damages. <<Tort Liability Act "> Department of the provisions of Article 22 of general terms, the interpretation should be considered All in all the above-mentioned provisions of judicial interpretation. But, "<Tort Liability Act"> the provisions of Article 22 on the number and comparative law of damages for mental adopted different statutory models, including "" German Civil Code>> Section 253 and Article 823, paragraph 1, of the regulations. the spirit of the statutory damages range of mining model, one can avoid the spirit of action for damages pan, on the other hand appears to be too strict, which has shown the most obvious in the case of Germany. In Germany, relatives of the deceased due to the accidental death of their loved ones do not enjoy the spirit of the damage caused by the claim, unless the result of such bad news can lead to diseases identified by the Medical only because based on physical, mental health injury damages request. In addition, in Germany, based on wedding photos and other items of interest with the loss of personality, can not fault the request for compensation for moral damages inflicted party. Overall, I believe that the scope for moral damages, in the "<Tort Liability Act"> Article 22 adopted the provisions of such general mode, should be strictly interpreted. in the interpretation, beyond the <<and Mental Damage Compensation explain>> the scope of Article 1-4 of the request should be denied compensation for moral damage. based on <<tort damages for mental explanation>> Article 1, paragraph 2, "other personal interests" is the spirit of the request for damages against the case, should strictly control "against the public interest and morality," the precondition for, and strictly interpreted to limit its scope reduced. such as Based on the so-called "kiss right", "visiting rights", "peace right (right to rest)," "environmental rights" and are asking for moral damage compensation against the case, are not supported. In addition, the request for the spirit of criminal victims compensation can not be problem, "<Tort Liability Act"> still has not responded, regrettable.

Sixth, the unconstitutionality of the war apology
<<Tort Liability Act "> Article 15, paragraph 1, Article 5 provides for an apology as a commitment one way of tort liability, in fact, follow the <<Civil Code"> the provisions of Article No. 120,134. This makes apologize The apology widely in comparative law assumes the controversial way of tort liability law in our country once again established. from the application of law point of view, the Court of accountability for the use of means of such generally order the defendant newspaper published an apology, If the defendant does not take the initiative to publish, published by the court instead of the defendant published by the defendant to pay costs. From the comparative law point of view, belong to the Chinese cultural circle in Japan, South Korea to give up the apology as a way of civil liability. In recent years, scholars This also did not attract academic attention until the accountability of way into question. [13] From "<Tort Liability Act"> discussions in the legislative process and legislative results, this problem has not attracted sufficient attention, which The main reason I am afraid that our jurisprudence is that accountability means the basic constitutional rights involved in the maintenance of respect and lack of awareness, there is no serious review of legislative provisions may harm people's basic rights. Of course, I do not believe that this form of liability should be fully canceled, after all, this system has been practiced in China for a long time, if the existence of Confucius, Xu said, "a word to break prison," the effect is also not a too good way to eliminate contradictions. However, the judge apologized for the accountability to be considered fundamental rights of way within the values ​​and ideals, maintaining personal autonomy and human dignity, to avoid humiliation of the defendant in the position grid.




Notes:
[1] <<Supreme Court cases on the Trial of Reputation Interpretation of Several Issues>> Article 1, paragraph 1, item 1 will be divided into the right to life and health, life, health, body right 3 right.

[2] See Zhang Hong: <<On the general personality right as a means of protection of basic rights>>, "Law and Business Research"> 2009 4.

[3] See Wang Liming: <<Personal Right>>, China Renmin University Press, 2009 Edition, pages 157-158.

[4] Vgl.Larenz / Canaris, Schuldrecht, besondere Teil II, 13 Aufl., § 76 II1 a.

[5] Vgl. BGHZ 124, 52 = NJW 1994, 127. - Schmerzensgeldanspruch wegen Vernichtung einer Spermakonserve.

[6] See Zhang Bao: <<tort law compensation for death of >>,<< Research "> 2008 4.

[7] See Ye Yi: <"A Further Range >>,<< Compensation Law and Business of Death Research"> 2010, No. 5.

[8] I was not going to lose is the general practice of comparative law. Vgl.v.Bar, Gemeineuropaisiches Deliktsrecht II, Rn. 47.

[9], such as <"German Civil Code>> Section 844 and the Taiwan region of China called" civil law "the provisions of Article No. 192,194.

[10] See Zhang Bao: <<<Tort Liability Act "death compensation system s >>,<< China Law" 2010 3.

[11] See Zhang Hong: <<dead Personality in the interests of protection, case comparison and judge-made law >>,<< Law and Business Research "> 2010, 4.

[12] See Zhang Bao: <<Elements of tort liability Research ">, Law Press, 2007 edition, p. 273, Yang Lixin: <" Mental damages --- the spirit of damages by the Supreme Court of Justice for Center>> , People's Court Press, 2004, p. 47.

[13] See Xia Xiuyuan: <<On the abolition of Tort Law's "apology" responsibility>>, http://WWW.civillaw.com.cn/article/default.asp? Id = 43065,2010-07-20. Links to Research Papers Download http://www.hi138.com