On Interpretation Of Heroes And Martyrs Article In The General Principles Of Civil Law

In recent years,some people in the society have directly verbally attacked the deeds of heroes and martyrs,desecrated and vilified the spirit of heroes and martyrs,discredited the martyrs and caused bad social impact.In response to this situation,the "General Principles of Civil Law" set up a hero and martyr clause to protect the damaged public interests.However,as soon as this provision came out,there was much controversy in the interpretation and application of this provision by the theoretical community.This article adopts an interpretive approach and combines the needs of judicial practice to analyze Article 185 of the General Principles of Civil Law,and puts forward its own views on academic disputes.The full text is divided into three parts: introduction,text and conclusion.Among them,the text is four parts,the specific content is as follows:The first part analyzes the content of heroes and martyrs clauses and the status of judicial application.First,based on Article 185 of the General Principles of the Civil Law,the content of the article is discussed,and the significance of establishing the article is analyzed from three aspects: protection of interests,perfect legislation,and socialist core values.Secondly,it analyzes the application of the hero and martyrs clause in judicial practice.Through the search and analysis of the non-litigation case database,it was found that cases of violating the interests of heroics occurred frequently.Through analysis of typical cases,the author believes that in the judicial application of heroic martyrs clauses,the protection object and scope of protection are not clear,the judgment standards that harm social public interests are ambiguous,the identification standards of heroic martyrs' personal rights infringement behavior are not clear,the subject of the right of claim is in doubt,and the tort Five issues of light responsibility.The second part analyzes the protection scope of the hero and martyrs clause.First analyze the protection object of this clause.Explain "hero","martyr" and "etc." separately,and consider "hero" as a noun,juxtaposed with the martyr,and only include heroes who have died or died,and the scope of heroes is limited to modern times.Others with heroic character should also be protected by the hero martyrs clause.The identification of martyrs can be inaccordance with China's existing assessment standards.Secondly,it analyzes the object of protection of the hero and martyrs clause.It is pointed out that the objects protected by this clause are personal interests and impersonal rights.The scope of protection is the four personality interests of name,portrait,reputation,and honor,and can be expanded to understand.Infringements on the remains of heroes and martyrs should also be included in the scope of protection.The third part analyzes the problem of determining the infringement of the hero and martyrs clause.First,the clause should apply the principle of liability for fault.The determination of a tort must also have the four elements of illegal behavior,damage consequences,causality,and fault.The fault includes both intentional and general fault.Secondly,it discusses specific behaviors that violate the names,portraits,reputations,and honors of heroes and martyrs.In addition to general infringements such as insults,heroic names and portraits must not be used in commerce.Finally,it discusses the infringement consequences of the terms of heroes and martyrs,that is,the damage of public interest.Social public interest can be understood as the common emotions of the society,and the interests should be weighed in the specific judgment.The fourth part analyzes the claimants and the responsibilities of heroes.First analyze the subject of the claim.The claimant should be determined based on the interests protected by this clause.This clause protects mainly the public interest.The subject of the right of claim shall be the procuratorate,and close relatives shall not have the subject qualification.Secondly,it analyzes the way to bear tort liability.In addition to the general liability for infringement of personality rights,it should also include compensation for property damage and profit,but not compensation for mental damage.The compensation should be managed by the heroic protection department.