This volume is a collection of articles on the codification experience of China’s Law of Personality Rights, explaining the design of the Law as well as its innovations.
As the second volume of a two-volume set that elucidates the theory, practice, and codification of the Law in China, the book explains the legal advancement of the Law of Personality Rights as a standalone part of the Civil Code of China. This includes innovative legislative thinking, law system arrangements, rule designs, and a systematic refinement of the provisions of personality rights in terms of nature, system, types, content, exercising rules and protection methods. Regarding the implementation of the Law, the book points out that personality rights are changing with the times so a more complete system of legal interpretation should be built. The final three chapters are appraisals of different versions of the draft law, with amendments to some articles advanced based on shortcomings and omissions.
The book will be an essential reference to scholars and students studying civil law, continental law, Chinese law, and the legal protection of personality rights.
Author(s): Wang Liming, Tianheng Qi, Shi Jiayou
Series: China Perspectives
Publisher: Routledge
Year: 2022
Language: English
Pages: 204
City: London
Cover
Half Title
Series Page
Title Page
Copyright Page
Contents
Contributors
1. Major Highlights and Innovations in the Separate Law of Personality Rights
1.1 The Law of Personality Rights Seeks to Construct a Complete Set of Rules and System of Personality Rights
1.1.1 The Law of Personality Rights Seeks to Clarify the Adjusted Objects and Enrich the Framework
1.1.2 The Law of Personality Rights Seeks to Build the Framework in the Form of Lexgeneralis/Lexspecialis
1.1.3 The Law of Personality Rights Seeks to List Specific Rights and Keep Rights and Interests Open
1.2 The Law of Personality Rights Seeks to Uphold the Personal Dignity-Centred Value
1.3 The Law of Personality Rights Seeks to Balance the Negative Defence and Positive Utilization Function of Personality Rights
1.4 The Law of Personality Rights Gives Priority to the Protection of the Right to Life, Body and Health
1.5 The Law of Personality Rights Seeks to Establish Special Modes of Personality Right Protection
1.5.1 The Unique Protection of Personality Rights
1.5.2 Diverse Ways to Protect Personality Rights
1.5.3 Effective Coordination of the Conflict between Various Values
1.6 The Law of Personality Rights Pays Attention to Preventing Violations of Personality Rights
1.6.1 It Stipulates the Injunction System against Infringement of the Right of Personality
1.6.2 It Stipulates the Legal Relief Obligations of Relevant Subjects
1.6.3 It Defines the Obligations of Relevant Subjects to Prevent and Stop Sexual Harassment
1.6.4 It Stipulates the Obligee's Right to Query His Own Credit Evaluation and Personal Data
1.7 The Law of Personality Rights Seeks to Effectively Balance the Protection of Personality Rights and Other Values
1.7.1 The Law of Personality Rights Seeks to Coordinate the Relationship between the Protection of Personality Rights and News Reports or Public Opinion Supervision
1.7.2 The Law of Personality Rights Seeks to Coordinate the Relationship between Protecting the Right to Reputation and Encouraging Creative Freedom
1.7.3 The Law of Personality Rights Seeks to Balance the Protection and Rational Utilization of Portrait Right
1.7.4 The Law of Personality Rights Seeks to Balance the Protection and Rational Use of Personal Data
1.7.5 The Law of Personality Rights Seeks to Solve the Conflict between the Protection of Personal Privacy and the Maintenance of Public Interests
1.8 The Role of the Dynamic System Theory Is Leveraged in Imputation
1.9 The Law of Personality Rights Seeks to Strengthen the Protection of Privacy and Personal Data
1.9.1 The Law of Personality Rights Strengthens the Protection of Privacy
1.9.2 The Law of Personality Rights Further Strengthens the Protection of Personal Data
1.10 Conclusion
Notes
2. The Innovative Development of Personality Right Legislation through the Law of Personality Rights in China's Civil Code
2.1 The Innovative Development of Personality Right Legislation through the Law of Personality Rights in China's Civil Code
2.1.1 The Innovation in the Legislative Style of the Personality Right Law
2.1.2 The Innovation in the Nature of Personality Rights
2.1.3 The Innovation in the System of Personality Rights
2.1.4 The Innovation in the Types of Personality Rights
2.1.5 The Innovation in the Content of Personality Rights
A The Rights to Life, Body and Health
B The Rights to Name and Title
C The Right to Portrait
D The Rights to Reputation and Honour
E The Rights to Privacy and Personal Data
2.1.6 The Innovation in the Rules of Exercising Personality Rights
2.1.7 The Innovation in the Protection of Personality Rights
2.1.8 The Innovation in the Specific Methods of Personality Right Protection
A Injunction for the Claim of Personality Rights
B Mental Damage Compensation for Breach of Contract
C The Claim for Civil Liability Shall Be Commensurate with the Mode and Influence of the Act
2.2 There Are Still Some Problems on Personality Right Legislation Deserving Further Research in the Civil Code
2.2.1 Does Personal Freedom Fall under General Personality Rights or Specific Personality Rights?
2.2.2 Does Sexual Harassment Infringe the Right to Body or the Right to Sexual Autonomy?
2.2.3 Does the Definition of the Right to Portrait Involve Only Portrait or Image in Addition to Portrait?
2.2.4 Does the Right to Honour Fall under the Right of Personality or the Right to Identity?
2.2.5 Is Personal Data a Right or an Interest?
2.2.6 Why Are There No Provisions of Marital Autonomy?
2.3 The Reasons for the Innovation as Well as the Effect Evaluation of the Innovative Provisions on Personality Rights in the Law of Personality Rights in the Civil Code
2.3.1 The Main Reasons for the Innovative Provisions and Protection of Personality Rights in the Civil Code
2.3.2 Evaluation on the Effect of Legislative Innovations Made by the Law of Personality Rights in Civil Code
2.4 Conclusion
Notes
3. When the Ideal Has Been Turned into Reality: From Legislation to Interpretation
3.1 The Law of Personality Rights in the Systematized Civil Law
3.1.1 Relationship between Public and Private Law Rights
3.1.2 Civil and Commercial Relations in the Law of Personality Rights
3.1.3 Property Relations in the Law of Personality Rights
3.2 A Law of Rights
3.2.1 The Right Law Attribute of the Law of Personality Rights
3.2.2 Legalism and the Open Right System
A General Personality Rights
B Personal Data: Rights, Legal Interests and So On
3.3 The System Value of the Claim of Personality Rights
3.3.1 Doctrinal Basis of Independent Compilation
3.3.2 A New Way of Absolute Right Protection
A Transformation and Sublimation
B Pre-Litigation Injunction
3.4 Towards the Future Hermeneutics
3.4.1 Referee-Oriented Design of Norms
3.4.2 Amendment of Law
3.5 Conclusion
Notes
4. On the Separation of the Claim of Personality Rights from the Claim of Tort Damage Compensation
4.1 The Independence of the Claim of Personality Rights Is the Basis of Its Separation from the Claim of Tort Damage Compensation
4.2 The Difference between the Claim of Personality Rights and the Claim of Tort Damage Compensation Is the Reason for Their Separation
4.3 The Claim of Personality Rights Is Separated from the Claim of Tort Damage Compensation to Fully Protect Personality Rights
4.3.1 To Make Up for the Deficiency of the System of Personality Right Protection in the Current Law
4.3.2 To Strengthen the Effective Prevention of Personality Right Infringement
4.3.3 To Help the Accurate Application of Legal Rules and the Unity of Judgement
4.3.4 To Effectively Deal with the New Problems of Personality Right Protection with the Development of Modern Society
4.4 The Application of the Claim of Personality Rights to Non-Infringement Is an Important Manifestation of Its Separation from the Claim of Tort Damage Compensation
4.5 The Legislative Choice by the Draft Civil Code of the Separation of the Claim for Personality Rights and the Claim for Tort Damage Compensation
4.5.1 Distinguish the Establishment of Infringement and Damage, Which Are Applied to the Claim of Personality Rights and the Claim of Tort Damage Compensation Respectively
4.5.2 Whether the Infringement Is Sustained and Will Cause Damage Should Be Clarified
4.5.3 Whether the Corresponding Claim Is Exercised through Tort Litigation Should Be Clarified
4.5.4 The Choice of Claim Made by the Party Concerned Should Be Fully Respected
4.6 Conclusion
Notes
References
5. A Pragmatic Combination of Conservation and Innovation: Comments on the Law of Personality Rights in the Civil Law of the People's Republic of China (Draft)
5.1 Practical Summary of Existing Legislative and Judicial Experience
5.2 Innovations in and Development of Personality Right Protection
5.3 The Systems that Are Advised to Be Further Improved
5.3.1 To Clarify the Relationship between Tort Rules in Personality Rights and Tort Liability Law
5.3.2 Perfection of Some Provisions of the Draft
5.3.3 Proposed Additional Systems
5.4 Conclusions: New Development of the Civil Code System
Notes
6. Progress and Limitations of Personality Right Legislation: Comments on the Draft of the Law of Personality Rights in Civil Code (Third Review)
6.1 Major Revisions of the Third Review Draft
6.1.1 First, What Is the Law of Personality Rights About?
6.1.2 Second, the Definition of Personality Rights
6.1.3 Third, the Referential Application to the Right to Identity
6.1.4 Fourth, Organ Donation
6.1.5 Fifth, Gene Research
6.1.6 Sixth, the Definition of the Right to Privacy
6.1.7 Seventh, What Do Personal Data Contain?
6.2 General Provisions on Personality Rights
6.3 Material Personality Rights
6.4 Social Personality Rights
6.5 The Right to Self Determination of Personality Interests
6.6 Conclusions: On the Legislative Style of the Law of Personality Rights
Notes
7. The Last Opportunity for the Improvement of Personality Right Legislation
7.1 The Provisions on the Protection of Personality Rights of the Deceased Need to Be Improved
7.2 Provisions on the Commercial Utilization of Personality Elements Should Not Be Included in the General Provisions
7.3 The Wording of the Provisions of the Principle of Proportionality Needs to Be Improved
7.4 The Provisions of Life Dignity Needs to Be Improved
7.5 Provisions of Gene Editing Should Highlight Intergenerational Justice
7.6 The List of the Subject of the Obligation to Prevent Sexual Harassment Is Illogical
7.7 The Principle of Truth Exception Should Be Established in the Disputes over the Infringement of the Right to Reputation
7.8 There Are Some Defects in the Legislative Style of the Right to Peace of Life
7.9 The Concurrence of Laws and Regulations Should Be Avoided
7.10 Provisions of Algorithmic Discrimination Should Be Made
Note
Index
