| After the death of human, the physical and personality factors will transform into a kind of remains of deceased person, which contains both personal spiritual heritage and the material remains.Also,which involves the public interest and private interests. Even if human is dead, still can leave traces of live, and these traces will show the features of the deceased person.And some elements of spiritual personality, is able to exist forever.It makes a great difference. In the judicial practice, there are many cases of illegal infringement. For example, some person damaged image and reputation of the deceased person, illegal use of dead bodies and so on. However, Chinese legislation lack of related regulations,so that it is hard to deal with such cases.There are many problems and contradictions in the judicial practice.This article focuses on exploring how to protect the remains of deceased person in civil law better.In order to protect the remains of the deceased better, the most important thing is to determine the legal nature of the remains, which is the theoretical basis of the article. Therefore, this paper discusses the legal basis of the remains from two aspects:The first aspect is the material remains. Material remains mainly refers to the corpse, the corpse is the objective existence. Now the definition of the corpse does not have a clear, unified standard, this word more often found in the criminal law, administrative law and so on. But I believe that according to "the spirit of the Supreme Court regarding the determination of tort liability for damages Issues interpretation" section 3, paragraph 3, as well as general social knowledge and emotional concept,corpse should be expanded the interpretation. In this article, the connotation of corpse includes the remains of bones and ashes. So that it can protect the material remains more comprehensively.Some scholars claim the corpse is not a res,because it contains human ethics. However, I believe, although the corpse contains the feelings of the living, but it is different from living body, the corpse has already be materialized and lost its vitality, it is an objective existence,and has the same as the definition of the res.The corpse is defined as res that does not mean that we deny the special ethical values in corpse, it is a special kind of res and can’t be traded. To be clear, since it is the res, it will produce real right.Although the corpse can become the object of the real right, but the real right is limited in possession, use, earning and dispose, should comply with public order 〠morals manner and the law. In addition, the way to acquire the real right is a special original acquisition.The real right belongs to the close relatives of the deceased, it is joint ownership but also undivided share. And the Disposal of corpse needs all co-owners agreement.The second aspect is the spirit remains. It includes name,portrait, privacy,honor and so on.These personality factors will not disappear after the death of human, it remains in the memory of the living person, and some people even leave a good name forever.Protecting spirit remains is in the sake of protecting the rights of the the close relatives of deceased.There are some doctrines: the protection of the deceased right, the protection of the law benefit of the deceased,the protection of close relatives rights,the protection of the family interests and so on. There are loopholes in logic in each theory. I in favor of the doctrine of Professor Xihe Li.The doctrine is more reasonable. In fact, the essential difference between these doctrines is the legal status of the deceased, that is, whether the deceased have the qualifications of civil subject.If natural person want to acquire the qualifications of civil subject, it must have three elements,:including the will, vector and personality, these three elements are indispensable. Will and carriers are physiological basis, but personality is the legal basis. After death,the deceased will not have the will, the vector will also materialized as the corpse.Once lack of physiological basis, people can not enjoy the subject qualification. And any behavioral effects can’t be attributed to the deceased, that is, the deceased do not have the qualifications of civil subject, and should not become the subject of legal relations.However, the deceased’s personality factors as the spirit remains will still remain, but no longer be attributed to the deceased. The reason to protect the spirit remains of the deceased is in the sake of protecting the public order and good morals and ethical norms of society, these personality factors especially closely relates to the spiritual interests of their close relatives, the protection of the spirit remains is actually protecting the living people’s spirit.The infringements of spirit remains are applicable to tort law remedies, but there are some strict restrictions also.Spirit remains not only has spiritual value, but also has a certain value of the property, because with the development of modern economy, such as the name, portrait, privacy and other personality factors has been entered the market, it creates economic value and can be possessed. The value of this part can not be ignored. This value is based on human relations and social needs which arising from commercialization, more and more people realize the value of personal interests and use consciously. These interests can also continue to exist after the death of the deceased, they should be inherited, but should comply with the social public order and morals and human ethics.After determining the legal nature of the remains, is time to establish the protection system. I did not create a new system, but within the existing legislative framework, integrated the relevant provisions, so as to form a comprehensive system. Here are the measures:First, about the protection of material remains, there are some specific restrictions on the disposition of the corpse, the remedies of third parties’ tort are according to the real right law and the tort law.Secondly, about the protection of spirit remains, let’s draw lessons from foreign experience. To protect this part, there are two modes, one is a German general personality right mode, one is the American Right of Publicity, no matter what kind of model, the interests of the spirit remains shall be inherited by close relatives. According to the Chinese current legislative status, general personality right mode is more fit our reality. Because the aim of the protection is mainly to protect the spirit of close relatives, and close relatives’ life is limited, so theoretically speaking, we should determine a period of protection.As time goes on, the deceased personality factors influence will gradually weaken.so the period of protection should the same as close relatives survival period. In addition, the economic value of the spirit remains, the protection period should depend on the degree of the commercialization. The period of higher degree of commercialization can refer to the copyright law which provide that the Personal right protection period is 50-year. Besides the period of not high degree of commercialization should be the same as other spiritual part. The close relatives may request compensation for mental damage.This paper includes three chapters. The first chapter discusses the theoretical basis of the material remains, mainly including the legal status and legal characteristics of the corpse, and the disposal rules of the corpse. The second chapter discusses the theoretical basis of the spirit remains, including the legal status of the deceased, the doctrines and legal nature of spirit remains.The first two chapters are parallel to each other, is the base of this paper. The third chapter discusses the civil law protection system of the remains of the deceased. These three chapters are interconnected and formed a more complete theoretical system. |
