| The protection of personality right in traditional civil law is more conservative,only recognizing that personality right has spiritual interests,not property interests.Moreover,the author thinks that the personality right belongs to the dominant right and has exclusivity,and cannot be separated from the obligee or transferred to others.Therefore,the traditional civil law remedies the right of personality by negatiely excluding others’ infringement and interference.With the rapid development of social economy and the rise of intangible industries such as the service industry,the commercial utilization of personality right is no longer confined to specific commodities,but mainly presented in the form of intangible utilization.The property attribute of personality right is gradually highlighted and exploited,and the traditional system of personality right is facing great challenges.In this regard,the modern civil law gradually recognizes that the personality right has the dual attributes of spirit and property.In judicial practice,in the case of relatively lagging legislation,the disputes caused by a large number of commercial utilization of the right of personality,the judges can not be followed,the difficulty of the law,the judges are different,a large number of judgment compensation is far less than the amount of the appeal.At the same time,due to the different judicial decisions in such cases,it is difficult for the obligee to seek a clear legal way to protect his legitimate rights and interests.The obligee’s personality right cannot be timely and completely protected,so that the obligee loses the confidence to claim his rights.On the contrary,the infringer still has the psychology of profit after paying a lower amount of judgment compensation to the right holder,which leads to the rampant infringement phenomenon of the commercial use of the right of personality,which cannot be contained.Such a vicious circle undoubtedly brings new problems and challenges to the personality right legislationand personality right system.The current legal system of commercializing the right of personality in China is not perfect.The scope of the object of the commercial use of personality right is too narrow,and the way of exercise is conservative.The judges did not agree on the standards on which the actual property loss,tort benefit and discretionary compensation were calculated,leading to different judgments.Based on this,this paper runs through the idea of raising the problem-analyzing the problem-solving the problem.Firstly,this paper analyzes the commercial use of personality right in legal theory,and then analyzes the current legislation and judicial cases and puts forward the problems in the commercial use of personality right.Contrast the experience of comparative law,especially the analysis of the relevant provisions and judicial precedents in the United States and Germany,which are clearly representative.At the same time,combining with the compilation process of "personality right" in the civil code of China,the author hopes to realize the commercial utilization of personality right,put forward some Suggestions on legislation improvement and the feasibility of judicial precedent.The first chapter analyzes the personality right,extends the concept and characteristics of the commercialization of personality right,and further extends the concept of the commercialization of personality right and the grasp of its object scope.Then,the author analyzes the disputes of the theory of property right,the theory of new right and the theory of personality right in the commercial use of personality right,and puts forward the reasons and significance of the theory of personality right.Finally,through the analysis of the different theories behind the commercialization of personality right,the author obtains the theoretical support of personality right.The second chapter analyzes the current legislation of our country and the provisions of the civil code（draft）on the commercial utilization of personal right,combining with judicial precedents.This paper points out that there are still some problems in the legal system of commercial use of personality right in China,such as too narrow scope of objects,too conservative way of use,lack of legislation on right ofpersonality right claim and still need to be improved,difficulties in proving actual property loss and tort benefit,uncertain amount of compensation,and the reasons for it.The third chapter,from the perspective of comparative law,analyzes the legal provisions and judicial practices concerning the commercial use of personality right in foreign countries,and finds out the ideas and methods conducive to solving the problems existing in the commercial use of personality right in the second chapter.Fourth chapter combines the first chapter regarding the commercial use of the theoretical basis and the third chapter abroad regarding the commercial use of legal protection mode and revelation,in the second chapter comb out the relevant legal system of personality right commercial use of existing problems,and put forward respectively in opposite to exclude mode for expanding the scope of the object of the personality right commercial use,moderately relaxed personality right exercise of the commercial use of the rules,to establish and perfect personality right of claim,benefit to patent infringement onus probandi inversion,specific Suggestions for perfecting the compensation. |
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