| Article 185 of the General Principles of the Civil Law of China in 2017 stipulates the protection of the personality interests of heroic martyrs,but it is too principled and there is a dispute whether it violates the principle of equal protection.The Law on the Protection of Heroes and Martyrs promulgated in 2018 has solved many specific application and disputes of Article 185 of the General Principles of Civil Law,but there are still some problems in the latter’s provisions on the protection of the personality interests of heroes and martyrs.Therefore,it is of great practical significance to study the protection of the personality interests of heroic martyrs in China.The main body of the paper is divided into four parts:The first part focuses on the general theory of heroic personality interests in China.First of all,through the analysis of the concept of "heroic martyr",this paper holds that the scope of protection of heroes is not only the heroes who have passed away,but also the heroes who are still alive.Secondly,this part analyses the concepts and connotations of "heroic personality interests" and "common deceased personality interests",and finds that the legal interests protected by the two are different.Protecting heroic personality interests is to protect social public interests,which is why heroic personality interests are included in the General Principles of Civil Law.The second part mainly introduces the historical evolution of the protection of heroic personality interests in China.This part is divided into two parts.Firstly,because the protection of the personality interests of the heroes belongs to the protection of the personality interests of the deceased in essence,the first part of this part introduces the historical evolution of the protection system of the personality interests of the deceased in China.This part introduces the development of the protection system of the deceased’s personality interests by dividing it into the stage of case approval and the stage of legislative improvement,so as to show the characteristics of the protection of the deceased’s personality interests in the judicial and legislative aspects.Secondly,this part introduces the background of legislation for the protection of the personality interests of heroic martyrs in China.Under the background of frequent violations of the reputation of martyrs,article 185 of the General Principles of Civil Law and the Law on the Protection of Martyrs were promulgated solemnly to protect the personality and interests of martyrs.The third part studies the current judicial situation and existing problems of the protection of heroic personality interests in China.Through the study of 17 related cases from 2000 to October 2018,this paper points out that the main characteristics of the cases of infringement on the personality interests of heroes in China are as follows:1.The frequency of Heroes infringement cases is increasing year by year;2.The proportion of "no one to ask" is as high as 27%in the comparison of the rights protection situation after infringement;3.The comparison of litigation results shows that Heroes’ close relatives win the lawsuit.The rate is high.In China’s judicial practice,there are still some problems in the relevant tort cases,such as the difficulty of identifying heroic martyrs,the difficulty of identifying the subjective fault of the infringer,the difficulty of defining the boundaries of the freedom of speech,and the great difference in the cost of civil liability of the infringer in different cases,which may lead to the risk of low cost of tort.The fourth part puts forward suggestions to improve the protection system of the personality interests of heroic martyrs in China.In terms of legislation,It is suggested firstly that the database of heroic information(including personal archives and heroic rating information)should be established in order to save judicial resources better,and the database should be legalized in legislation,giving it the corresponding legal authority status.Secondly,this paper also suggests that in judicial practice,the defense of the infringer should be limited according to the three principles of"reasonable,prudent and good faith",and on this basis,the "authentic defense rule"and "news source defense" in the right of reputation should be introduced to prevent the establishment of the defense of the infringer.In addition,it is suggested that the boundaries of infringement of freedom of speech should be defined.This paper points out that following the principle of respecting historical facts and heroism can better construct a reasonable limit of freedom of speech,and suggests introducing the relevant provisions of "prohibitive speech" in Europe to enrich legislation,thus solving the problem of blurring the boundary between tort speech and freedom of speech in judicial practice.Finally,it is suggested that the way of civil liability should be increased,and the compensatory punishment system in Anglo-American law system should be introduced to increase the tort cost of infringers;secondly,it is suggested that the compulsory public service system be established to repair the damaged heroic personality interests,which is more in line with the purpose of legislative protection in China. |
