The Limitation Of Right To Privacy Protection Under Civil Law And Alternative Solutions

In the early days of its development, right to privacy is not recognized as theprivate right by most of countries. Right to privacy has experienced a long process toreceive the protection in the law around the world. At present, right of privacy has beenprotected by civil law and constitutional law in most countries such as Germany andUSA. Right to privacy in China nowadays is mainly protected under the civil law.However, due to the limitations in the protection of civil law, the way to overcome thelimitations plays important role in the legal protection system of right to privacy inChina.The definition of privacy right rely the understanding of “privacy”, the history ofprivacy and privacy right reflects that privacy right means that people have the right tobe alone and the right to determine by their own judge. The nature of privacy right isinfluenced by the value of the world of privacy and to be specific, the nature of privacyright not only refer to private law but also public law; not only reflect property butspirit, and should be restrained in the international law, all in all, privacy right is a kindof independent personality right. The subject of privacy right should be confined tolive person. The object of privacy right contains the right to be alone; the personalprivacy information and the privacy decision. The privacy right includes privacyconceal right, the privacy utilization right, the privacy control right and the privacymaintain right. The content and nature of right to privacy determines that protection ofright to privacy should mainly focus on the scope of civil law.The protection of civil law mainly points to tort law. When the right to privacyhas been violated, the holder of right to privacy based on the corresponding civil law provisions could request the infringer to afford tort liability by tort lawsuit. However,this protection should be improved. Investigating the protection of right to privacy incomparative law could be found that there are three methods: the indirect protection,the general protection and the direct protection. The direct protection way is adoptedon the basis of the principle of "national action" in the United States, by expanding theinterpretation of the fundamental rights in the constitution law to protect privacy.German law chooses indirect way, according to "indirect effect" theory, based onfundamental rights to explain the relevant principles of civil law to protect privacyindirectly. Japan uses the general protection way, which belongs to indirect protectionessentially. The protection of right to privacy under UK law is influenced by theEuropean human rights protection organizations. The methods of foreign legalprotection have positive impact on our legal protection system of right to privacy.Based on the analysis of the legal status of civil law protection, it can be foundthat the protection system under civil law has limitations compared by protections ofother counties. The civil law of right to privacy lacks specific content which includingthe right to privacy, the claim right to privacy. Meanwhile, the protection under civillaw only can adjust the relations between individuals but not government andindividuals. Though the analysis of the limitations, it could be found that somesolutions should be completed by civil law, some solutions should be completed byother law as constitutional law. Overall, the civil law cannot protect the right to privacycomprehensive, should be complemented by constitutional intervention.This paper discusses the significance, the practicability and the operability ofconstitutional invention to prove that constitutional invention could overcome thelimitations of protection of right to privacy under civil law. Constitutional inventioncould play important role on protection under civil law which includes thatcomplement the flaws, improve the protection system and expanding the protectionsubject.In general, there are two kinds of constitutional invention which includes the fundamental rights of constitutional invention and human rights of constitutionalinvention. The former based on fundamental rights in constitutional law and which isimplemented by civil procedure. The latter is based on the human right in theinternational law and which is hard to implement due to the complex procedures whichincludes the human rights organizations and the procedures. by transforming intoconstitutional law. The purpose of constitutional intervention is very clear. Theconstitutional intervention in china mainly protects the right to privacy of individualsagainst state power, indirectly protects the right to privacy on the national obligationstheory which includes positive obligations and negative obligations. Theimplementation of constitutional invention depends on the validity of constitutionalinvention. In china, the provision in constitutional law which defines that the humanrights and relative privacy rights provides the legal basement to the above twoconstitutional invention. However, we could not use the both methods. This papercompares the two methods and concludes that the suitable constitutional invention toovercome the existing limitations is the fundamental rights of constitutional invention.Due to our actual legal environment, the constitutional invention in our country isbased on fundamental rights indirectly protect the right to privacy under the premise ofautonomy of civil law. But the fundamental rights of constitutional invention should beimplemented under the premise of civil law autonomy.Base on the discussion of the limitation of protection under civil law and thevalidity of constitutional invention, the article agrees that the china legal protection ofright to privacy should be built to connect the protection under civil law andconstitutional invention. It should be clear that the protection under civil law is thecore and fundamental way, constitutional invention is the complementary way andother protection under other law should be reference. Under this principle, thesuggestions to the China legal protection system of right to privacy include that right toprivacy should be recognized and ruled in the part of right of personality; meanwhilethe personality claim right and the personality privacy tort claim should be set in the civil law. As to the implement of constitutional invention, general personality shouldbe ruled in the civil law and the guiding cases should be considered in the protection ofright to privacy.