On the protection of commercial personality right in China

Content Summary:In modern society, the tide of commercialization based on the pursuit of profits has penetrated into all areas of society, and the nature of commerce drives business subjects to find and use all the factors that can bring economic benefits in society. In this context, a series of personality factors that mark "the reason why people are human" also appear the trend of commercialization, and the commercial interests of personality gradually show up, specifically for the commercial use of natural person's name, portrait, legal person's goodwill, trade name and other marks. In addition, for the trade name and goodwill of commercial organizations, in the modern commercial society, in addition to representing its original role of identification, commercial use makes them directly as material wealth and plays an extremely important role in the development of enterprises.

Due to the limitations of the traditional theory of personality rights, although the commercial use of personality interests is becoming more and more extensive, it has been shown in practice that the traditional theory of personality rights and related legislation have been unable to provide comprehensive protection for personality rights, especially for the protection of property interests in personality rights. Portraits, names, trade names and other objects related to personality rights used in commercial activities are no longer suitable for protection by the traditional theory of personality rights.

Keywords: personality commercial personality right perfect transfer system damage compensation system

The theoretical basis of 1. commercial personality right-the theory of personality right.

As a new development of personality right, commercial personality right is established on the basis of traditional personality right, and when studying the theory of personality right, the most important thing is to clarify the meaning of "personality.

(I) personality in the legal sense

In the field of law, the meaning of "personality" is obviously different from that of "personality" in sociology, philosophy and other disciplines. Marx once pointed out: "personality is separated from man, nature is an abstraction". Personality can not only be used to explain other subjects except individuals, but also has multiple meanings in law.

The first meaning of personality refers to the basic qualification of the acquisition of rights, that is, the subjects of rights enjoying independent legal status, including natural persons and organizations, as a sign of legal existence.

The second meaning refers to the capacity of rights, that is, the ability to possess rights and the ability to form rights necessary to become the subject of rights and obligations. This concept of personality is the basis for the enjoyment of rights by natural persons or organizations. Without personality (ability), one cannot become a legal person, nor can one enjoy rights. The degree of enjoyment and realization of personality (ability) is marked by the degree of enjoyment and realization of rights.

The third meaning refers to an interest protected by law, including the life, body, health, freedom, dignity, reputation, etc. of natural persons, which is the object of personality rights.

(II) traditional personality right

The traditional theory holds that the right of personality is a kind of non-property right, which mainly protects people's spiritual and moral interests. Personality rights do not directly reflect economic interests and do not have direct property attributes in themselves. The personality relationship itself does not take property as the object, nor does it take property as the content. In essence, the personal relationship cannot be measured and evaluated by money; at the same time, when the personality relationship is violated, it is impossible to adopt the equivalent compensation method, but the main method is A kind of spiritual comfort and punishment of the perpetrator, as well as the elimination of the harmful behavior. In addition, the right of personality is exclusive, belongs only to a specific subject, and may not be abandoned at will, if the actor abandons the right of personality with his own behavior, and can not have the effect of giving up the right in the ordinary sense, at the same time can not be transferred, inherit the right of personality as the property right.

The new development of 2. personality right and the basic theory of commercial personality right

The Reasons for the New Development of (I)'s Right to a Human Right

The development of commodity economy is the fundamental condition for the emergence of commercial personality rights. From a historical point of view, the development of the system of personality rights was adapted to the economic conditions at that time. In ancient times, the law only protected the human body, health and life of these minority personality interests, because under the economic conditions at that time, the protection of life safety was the most important or even the only. Later, with the development of economy, personality rights such as name right and honor right gradually appeared, and then personality interests such as portrait and privacy were also included in the scope of legal protection. In modern times, new personality interests emerge in endlessly, and the narrow scope of protection of the traditional personality right theory has affected the smooth progress of economy and society in some fields. The forward development of commodity economy inevitably requires the theoretical and practical circles to establish a new theory of personality rights and improve the existing legal norms as soon as possible, and the introduction and establishment of the theory of commercial personality rights is the product of the times.

The basic theory of (II) commercial personality right.

First, the concept and characteristics of commercial personality rights. The so-called commercial personality rights refer to the rights enjoyed by natural persons, legal persons and other commercial subjects in order to safeguard their commercial personality interests.

The right of commercial personality is fixed. As an inherent right of the commercial subject, the right of commercial personality is enjoyed because of the acquisition of the qualification of commercial subject, and once the commercial subject is born, it automatically acquires the right of commercial personality, without the commercial subject through certain legal acts.

Commercial personality rights are statutory. Because the right of commercial personality has a strong nature of personality rights, has a certain degree of exclusivity, and the city's natural rights, so the content and type of commercial personality rights, as well as the effectiveness, protection system, etc. are stipulated by law, the parties may not create commercial personality rights outside the legal provisions in accordance with the principle of autonomy of meaning.

Second, the value basis of commercial personality rights-commercial personality interests. The concept of commercial personality right is not without basis, but is abstracted from many new rights phenomena in the field of property and personality right interests, and it has strong practical value.

Third, the type of commercial personality right. As an independent type, the right of commercial personality is itself a collection of many rights, and the types he wants to live in are as follows:

(1) Natural portrait, name, voice and other commercial use rights

(2) Trade name rights

(3) Goodwill rights

(4) Commercial credit rights

3. Status Quo of Legal Protection of China's Commercial personality Right

There are some similarities between the current situation of the protection of commercial personality rights in China and the legislative situation of various countries, that is, they do not have a perfect and systematic legislative system, especially the characteristics of legislative dispersion are more obvious. Therefore, perfecting the theory and legislation of commercial personality right has positive practical significance in our country.

Legislation Status and Improvement Suggestions of Personality Identification of Natural Persons such as (I) Portraits

As for the legal provisions of the personal interests of natural persons, there are only principled provisions in our country, and there are no laws and regulations with strong operability. The main still stays in the protection of the spiritual interests in the personality, has not yet clearly affirmed the property interests in the personality. China should establish the right of publicity and improve the legal protection of personality signs such as portraits.

First of all, we can refer to the existing system of public rights in the United States, increase the natural person's name and portrait of the commercial development, transfer and inheritance provisions, from the perspective of perfecting the legal provisions to break through the limitations of the existing laws on the commercial use of personality marks. It mainly includes: affirming that I have the right of reasonable commercial use of my name and portrait, if it can be used as a certain capital for commercial investment; allowing me to authorize others to use my name and portrait for commercial purposes, and standardizing and clarifying the content and nature of the authorization agreement: adding the provisions that the economic benefits contained in the right of name and portrait can be inherited, clarify the scope of heirs, the elements of acquiring rights, the duration of protection of inheritance rights, and the loss of inheritance rights in order to strengthen the protection of the economic interests of the right of name and portrait.

In addition, the legal provisions on personality identification such as sound and specific items are supplemented, the most urgent of which is to increase the legal norms on the commercial use of sound, confirming that sound is the object of commercial personality rights.

Current Situation and Improvement Suggestions of (II) Trade Name Right Legislation

In the General Principles of Civil Law, my country stipulates that the business name is a kind of name right together with the name right of natural persons as a kind of personality right. In Article 120, it is stipulated that the victim of the infringement of the name right has the right to ask the perpetrator to stop the infringement. Eliminate the influence, apologize, and can claim compensation for losses. In addition, China has also protected trade names through laws such as the Anti-Unfair Competition Law, such as the Administrative Provisions on the Registration of Enterprise Names, which provide for administrative penalties for acts that infringe on the right to an enterprise's name. However, looking at the various laws, the legal protection of the trade name is not comprehensive, for example, the provisions of the trade name for the validity of the transfer of the trade name and the transfer method are not legal provisions, resulting in the practice of the relevant disputes can not be resolved in a timely and thorough manner, and so on.

China's current laws and regulations on the right to trade names are scattered in the General Principles of Civil Law, the Civil Economic Single Law, the Anti-Unfair Competition Law, the Company Law, the Product Quality Law, the Consumer Rights and Interests Protection Law and other laws. The provisions of each law are not the same, and conflicts are easy to occur when applying, which is not convenient for commercial subjects to use trade names reasonably and also brings inconvenience to the management of administrative departments, therefore, a unified "Trade Name Law" should be promulgated as the main law of the protection of trade names in China, and in which the transferability of trade names should be confirmed, and the conditions and duration of the transfer should be regulated in detail. In addition, China's regulations on trade names should be in line with international standards. Article 8 of the Paris Convention for the Protection of Industrial Property provides that trade names shall be protected in all countries of the Union without application or registration, whether or not they are part of a trademark. According to this provision, the protection of a trade name in a Member State is not premised on the registration or application of the trade name. As a member of the Paris Convention, our country has the international obligation to fulfill the Paris Convention. According to the law of our country, only the trade name that has been approved and registered is protected by law. Therefore, China should pay attention to harmonizing with international conventions in legislation or revising legislation to expand the scope of protection of trade names.

The legislative status quo and suggestions for the improvement of goodwill and credit rights in (III).

At present, the legal protection of the right of goodwill in China is not sufficient, but the word "goodwill" is mentioned in several legal documents, and the legal concept of the right of goodwill is not clear. The Anti-Unfair Competition Law passed in 1993 regulates the damage to goodwill in the field of unfair competition from the perspective of maintaining the order of market competition. Article 14 stipulates: "Operators shall not fabricate or spread false facts to damage the commercial reputation and commodity reputation of competitors." This regulation clearly defines the behavior of undercutting and belittling the commercial reputation and commodity reputation of competitors as unfair competition behavior, but it does not specify the legal responsibility for infringing the goodwill of competitors. It is only related to two general provisions, namely, Article 16 "Supervision and inspection departments above the county level may supervise and inspect unfair competition behaviors" and Article 20 stipulates that "operators violate the provisions of this law, if damage is caused to the infringed operator, he shall be liable for damages." According to the law, there is no legal basis for the administrative responsibility of the operator who carries out the act of damaging the goodwill of others. In terms of civil liability, the provisions on how the operator whose goodwill has been infringed requires the infringer to bear the liability for compensation are returned to the provisions of Article 120 of the General Principles of Civil Law on the legal liability for infringement of the right of name, reputation and honor of a legal person. In fact, there are obvious differences between these rights, and this kind of reference to the provisions of the applicable law is extremely unfavorable to the protection of goodwill.

The provisions on the right of credit are mainly concentrated in the civil law and the Consumer Protection Law. Both the General Principles of Civil Law and the Contract Law of our country have provisions on the principle of good faith, but this is done from the point of view of obligation and does not highlight the legal status of credit as a kind of commercial personality interest. Article 49 of the law on the protection of consumers' rights and interests stipulates that "if a business operator commits fraud in providing goods or services, he shall increase the compensation for the losses suffered by the business operator according to the requirements of the consumers, and the amount of compensation shall be twice the price of the goods purchased by the consumers or the cost of receiving the services." This provision is a penalty for bad faith, but it only applies to consumer contracts and has a narrow application. In addition, because the law of our country does not specify the right of credit, so the dispute of the relevant credit right is the same as the treatment of goodwill dispute, generally with the help of the provisions of the right of reputation, in which the confusion of the application of the law is obvious.

In the existing laws of our country, the concept of reputation right covers the right of goodwill and credit, which makes goodwill and credit become the sub-concept of reputation, and confuses the difference between reputation right, goodwill right and credit right, which is an unscientific provision. Therefore, the existing reputation right system should be re-standardized, ending the situation of goodwill right, credit right and reputation right living under the same roof for a long time, while retaining the right of reputation, the right of goodwill and credit right should be independent, so that the economic interests of personality weight can be fully protected.

In addition, the legislation on the right of goodwill and credit should form a legal network system, that is, from the basic law (civil code) to the special law (intellectual property law, anti unfair competition law, consumer protection law, product quality law, advertising law, etc.), and then to the special law (separate regulations), the regulation of the right of goodwill and credit should be stipulated from different levels. At the same time, because of the intangible characteristics of goodwill and credit, only through a certain evaluation method can its value be expressed in a specific quantity, therefore, the determination of the evaluation method is particularly important. In view of the deficiency of the relevant laws on goodwill and credit value evaluation in China, the author suggests that a unified value evaluation rule should be issued as soon as possible, so as to ensure the effective use of the property value of the commercial subject.

(IV) improve the transfer system of commercial personality rights.

The obvious difference between commercial personality rights and traditional personality rights is that their personality interests have certain property attributes. This is dynamically manifested as transferability. Only by confirming the transferability can the property interests contained in it be fully reflected. China's law only recognizes the transfer of trade names, does not affirm the transferability of the personality mark of natural persons, the transfer of goodwill is not mentioned, these are not conducive to the commercial development of personality interests, the value of the property it contains can not be fully reflected. Therefore, in the legislative concept, the understanding of the object of commercial personality should be reshaped, and while establishing that the commercial personality right has certain property attributes, it should be made clear that it has transferability; and in view of the situation that the existing laws of our country have no definite and detailed provisions on the transfer of commercial personality right, it is suggested that the transferability of commercial personality right should be confirmed by amending and supplementing the original laws or issuing judicial interpretations, and the transfer mode, transfer effect and other aspects to make detailed provisions.

(V) improve the damage compensation system of commercial personality right

The provisions of China's existing laws on damages for infringement of commercial personality rights are mainly reflected in the General Principles of Civil Law, the Supreme People's Court's Interpretation on the Trial of Reputation Cases and the Anti-Unfair Competition Law. These include: Article 120 of the General Principles of Civil Law stipulates that "if a citizen's right to name, portrait, reputation or honor is infringed upon, he shall have the right to stop the infringement, restore his reputation, eliminate the effects, make an apology and may claim compensation for the loss. If the right to name, reputation or honor of a legal person is infringed upon, the provisions of the preceding paragraph shall apply." Article 10 of the Supreme People's Court's Interpretation on Several Issues Concerning the Trial of Reputation Rights Cases stipulates that the scope and amount of compensation for losses in production, operation, and sales due to infringement of reputation rights are generally limited to the return of customers due to infringement., Rescission of contract and other losses, and does not include the reasonable expenses incurred by the victim. Article 20 of the Anti-Unfair Competition Law stipulates that "if an operator violates the provisions of this Law and causes damage to the infringed operator, he shall be liable for damages, and if the loss of the infringed operator is difficult to calculate, the amount of compensation shall be the profit obtained by the infringer as a result of the infringement during the period of infringement; and shall bear the reasonable expenses paid by the infringed operator for investigating the unfair competition behavior of the operator infringing on its legitimate rights and interests."

Through the above legal provisions, it can be seen that the provisions of various laws on damages for infringement of commercial personality rights are relatively principled, lack of detailed provisions on the determination of the amount, and only compensate for the specific property losses caused by the infringement, with limited scope and amount, it is difficult to effectively protect the injured subject afterwards, which is not conducive to the overall protection of the business activities of the business subject, the low amount of tort compensation is also not conducive to effectively inhibiting the occurrence of torts.

Because of the development of commercial personality right as personality right, the personality attribute of its object determines that when the right is infringed, the loss is not limited to the specific property loss visible at the time of the infringement, but also includes the damage to the personality factor itself, the impact of this damage is not easy to eliminate in the long run. For example, the infringement of corporate goodwill and credit, in addition to the specific property losses caused at the time, will also reduce the public's social evaluation and trust in the subject, resulting in a decrease in customers, and the number of sales of related products for a long time. Continuously reduce, and may directly affect the survival of the enterprise, thus forming a long-term negative impact that is not easy to eliminate. Therefore, the law should improve the system of damages for the infringement of commercial personality rights, and when determining the amount of compensation, the losses caused by the infringement to the subject of rights should be considered more comprehensively, so that the infringer can bear the losses caused to the victim as comprehensively as possible, and avoid the occurrence of the situation that only bears the liability for damages for short-term losses. At the same time, the infringer should be ordered to take effective methods to make up the victim's negative impact on society, this is not only conducive to ensuring that the injured subjects resume normal commercial activities as soon as possible, but also conducive to raising the public's awareness of safeguarding the commercial personality rights of others and reducing the occurrence of violations.

4. closing remarks

The system of personality rights is an open and developing system. Especially with the development of economy and science and technology, social and commercial activities have become more complex, and personality interests have a variety of attitudes. It is in this environment that the emergence of commercial personality rights is of great significance to the times. Its establishment will make up for the gap between personality rights and property rights effectively, provide theoretical support for the settlement of disputes in practice, and contribute to the improvement of national legislation. At the same time, the study of commercial personality rights is still in its infancy, and there are some differences between the perspective of the theory of personality rights in various countries and the current situation of legislation, which makes the development of commercial personality rights a long way to go. But the legal system is endless, I believe that in the near future, commercial personality rights will be like the traditional theory of personality rights in the historical stage to occupy an important place.

This article won the third prize of Jinan lawyer's business paper selection in 2011

(Total of 5630 words)

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