Study For The Legal Protection Of The Personal Interests Of The Dead

The system of the right capacity stipulated in the civil law of our country is that the right is enjoyed at birth and terminated at death.From the Supreme People’s Court’s approval of the case of "Lotus Girl" whether the deceased has the right of reputation to the relevant judicial interpretation,whether the deceased has the right of personality has always been controversial.In order to conform to the norms and logical consistency of the system,it is generally said that the deceased enjoys personality interests,but does not enjoy personality rights.Before the promulgation of the Civil Code,except for article 185 of the General Principles of civil Law and the Law on the Protection of Heroes and martyrs,there are no specific provisions on the general personality interests of the deceased.After the promulgation of civil Code,article 994 for the first time clearly stipulates the general personality interests of the deceased.However,Article 994 of the Civil Code only stipulates the protection scope of the deceased’s personality interests and the subject of the right of claim,but it is not clear about the relationship between the subjects of the right of claim and the unknown period of protection that often occurs in practice.Therefore,on the basis of the existing literature,the author draws lessons from overseas legal experience in the protection of the deceased’s personal interests,and puts forward some applicable suggestions for the legal problems existing in the protection of the deceased’s personal interests through the analysis of judicial practice cases in China.The main text is divided into four parts.The first part is the definition of the nature of the deceased’s personality interests and its protection theory.First "lotus" as a starting point to analyze the development of the personality interests protection in China,namely the personality interests protection case for approval to the relevant laws and judicial interpretations between the formulation of the process,to clarify the interests of personality and personality right of the dead,the dead personality mental interests and other interests,the dead personality and finally to the dead personality interests protection related theories to analyze.The second part discusses the present situation and existing problems of the protection of the deceased’s personality interests in China.It mainly discusses from two aspects: on the one hand,it discusses the double protection rule of Article 994 of civil Code from the status quo of legislative practice;Return to the traditional right of sacrifice;The relationship between article 994 of the Civil Code and article 25 and Article 26 of the Heroic Protection Law and Article 185 of the Civil Code;,on the other hand,in order to "personality interest" the dead "the personality" the dead "the personality" as the key words,in the Chinese net to collect written judgment about the dead personality benefit protection written judgment,analysis and comparison court exists in the body,such as bones whether belong to civil law on the "content",claims the subject range is relatively narrow and conflicts between the main body,The internal conflict of the protection clauses of heroes’ personality interests and the unknown agreement of the protection period of the deceased’s personality interests.The third part reviews and analyzes the protection system of the deceased’s personality interests.It is mainly divided into two parts: there are two protection modes for the spiritual interests and property interests of the deceased;The protection system of the deceased’s property interests mainly includes the system of return of unjust enrichment and the protection system of copyright law.Finally,compared with the protection mode of the deceased’s personality interests and the protection system of property interests in China,we can draw on the excellent legal experience in line with the current situation of Our country.The fourth part puts forward suggestions on the application of the protection of the deceased’s personal interests in China,such as clarifying the rank of close relatives,taking spouse,parents and children as the first rank,expanding the scope of the subject of the claim right in Article 994 of the Civil Code;When determining the subject of exercising the right of sacrifice to near relatives,respect for the deceased’s will is the primary consideration,and the consultation between near relatives and the principle of "closest contact" is the secondary consideration.Break through the rank of procuratorial organs;It is suggested to distinguish the spiritual interests and property interests of the deceased so as to determine the period of protection.