| In nowadays' society, the commodity economy gives more and more deep brand on everyone's body. With the market competition becomes more and more fierce, the commodity Producers and operators know that good will is very important and irreplaceable. Modern. social, reputation in enterprise such as reputation in personal. Can't conceive how a product without reputation carries out its value conversion; Can't even conceive how an enterprise without reputation has a foothold in the market. For any manager, the reputation means competitive advantage and the property benefits brought by it, but says for some illegal competitors, breaking and slandering others'seems to be to also become the shortcut which acquires "success". Because the reputation property is worth of convex now, the behavior which breaks and slanders others'reputation is also particularly a restive; the protection of reputation has already become the point of law concern. But the related system which has imperfection, make the purpose of reputation protect hard, among them shortage of reputation indemnity system can't bring itself into action. This text goes into some definition of reputation and reputation right's basic problems, at clear in meaning concept, by the study to the scope and the quantity of our country's reputation indemnity at present, put forward the basic way of perfecting infringement indemnity of our country's reputation system.Good will clarification, good will right Property differentiation is the theoretical starting point of good will legislation system construction. Good will right has been recognized legal circles, but exactly what kind of about it the right range of issues, scholars actually no agreement.So article first analyzed on the object(goodwill) of the commercial libel act, and pointed out the good will has the unique attribute. In overseas, common law countries Protect good will right mainly through in the form of case law, and civil law countries Protect good will right mainly through tort law and the Anti-Unfair Competition. WIPO also make the demonstration stipulation to Protect good will right. From the relationship between property rights and human dignity, good will rights and the right to personal and commercial property integration product intellectual property and intellectual property rights, and its different, the right to become an independent.The academic field has recognized that the right of good will is one civil right, but there is different opinion on which kind of civil right is belongs to. we should bear civil liability for violation in order to relief to the victim's damages. violations are the basis for civil liability occurred. Constitutive requirements include the existence of the damage, behavior and damage consequences of a causal relationship between the perpetrator subjective fault. From the cases, we find that the special elements are competitive element, subjective element and causation relationship.The third part analyses the indemnity scope and the quantity of our country's reputation. Making up for loss is the main way which undertakes the civil responsibility of the reputation infringement, for the victim, is also the best path which relieves his damage. But, the indemnity of reputation has a controversy in the law system.All countries are widespread to adopt two kinds of methods to define the indemnification quantities; one basis is the loss which the victim suffers because of infringement behavior. The other basis is the profit which the violator obtains. Our country's adoption is the same, but, these two kinds of methods still exist a lot of blemish.In the practice has developed a new method is also applied most in the case that is appropriate to determine on the basis of comprehensive consideration. There are some cases in order to intangible assets related to the assessment method approved by the amount of damages, this method also have great merit. The kinds of reference methods related have their merits, should adopt what concretely, still need a further study to this problem.In part four, the writer describes the experiences of national legislation and the legislative status of China, and discusses the integrity of the system of tort on protecting commercial libel act. In the scope of civil law, there are mainly three ways of protecting commercial rights of personality, one is general principles of civil law, the other is intellectual property law, the third is anti-unfair competition act. But there are some shortages in the three ways of protecting:At Present, there are some laws on the Protection of good will right, but there are still some deficiencies and weaknesses:the conception of Good will is not clear, the scope of goodwill Protection is relatively narrow, the responsibilities of good will right violation is not defined.This Part tries hard to carry on revision and improvement to the already existing legislation based on the analysis and comparison. However, the theory research on good will is not deep enough in law science community of our country, still less mention to perfect legislation Pattern. In actual judicial Practice, because of the different infringers, we always respectively apply the clause of reputation right in "General Principles of the Civil Law" and the clause of good will right in" Anti-unfair Competition Law" to Protect the same good will benefit. This chapter first Proves the theoretical and Practical feasibility of good will right as an independent civil right, and then explains the legislative idea of legal Protection about good will right from two aspects of Protection mode and Protection domain. This part and the third Part are focal Points of the thesis.law is to survive and develop in the judicial practice. So, in this article, I using a series of case to support my opinion. |
