Research On The Civil Compensation Liability Of Infringing The Personality Interests Of Heroes

Article 185 of the Civil Code provides that "those who infringe upon the name,portrait,reputation and honor of heroes and martyrs,etc.,and damage the public interest of society,shall bear civil liability." Based on this,damage to the public interest shall be the constitutive element of this article.The academic research on this article mainly focuses on the interpretation of the article,for violation of the article to bear the civil liability of less attention,the "heroes and martyrs protection law" a total of thirty articles on the above civil liability is not specific provisions.At present,in addition to the widely recognized civil liability of stopping the infringement,eliminating the impact,and making apologies,the next of kin may also claim civil compensation from the infringer based on moral damage.The existing civil liability system for infringement of martyrs’ personality interests needs to be improved because the procuratorial authorities cannot claim compensation for moral damages in public interest litigation and cannot make the infringers bear the economic consequences.The full text,except for the introduction and the final conclusion,is organized as follows:The first part examines the provisions of the "martyr clause" and its application of civil liability for infringement of the personality interests of heroes and martyrs.In the application of this provision,there are problems such as ambiguous judicial determination of moral damage compensation,the existing liability mode cannot provide good relief for social public interests,the personal interests of martyrs without close relatives are vulnerable to infringement and the procuratorial authorities cannot request the infringers to assume civil liability,and there is a wide gap between the different litigation modes in the form of liability for infringers,which should regulate the existing moral damage compensation and introduce civil liability in public interest litigation.The civil liability should be introduced in the public interest litigation.The second part is to explore the specific difficulties in determining the civil liability for infringement of the personality interests of heroes and martyrs.On the one hand,the civil liability for infringement of martyrs’ interests must meet the four elements of general tort liability;on the other hand,there are many difficulties in the specific determination of civil liability,including the unclear degree of "seriousness" and the vague standard of the amount of compensation for moral damage in the field of private litigation,and the lack of specific provisions for the determination of tortfeasor liability in public interest litigation.On the other hand,there are many difficulties in the determination of civil liability,including the ambiguity of the degree of "seriousness" and the amount of compensation in private litigation,and the lack of specific provisions to determine the tortfeasor’s civil liability.the third part analyzes the concept of improving the civil liability system for infringing the personality interests of heroes and martyrs.The "martyr clause" not only protects the personality interests of martyrs,but also protects the public interests of the society,and its protection of the public interests of the society will eventually rise to the protection of the interests of the whole nation.Therefore,in order to improve the civil liability system for the protection of the personal interests of martyrs,the three aspects of punishing tort perpetrators,safeguarding the public interests of society and protecting the interests of the whole nation should be taken as the guiding concept for the improvement of the system.The fourth part of the proposal for the improvement of the civil liability system for infringement of the personality interests of heroes and martyrs.On the one hand,it is necessary to clarify the degree of "seriousness" and the amount of compensation for moral damage.On the other hand,it is suggested that punitive damages should be added to the public interest litigation.This provision should be limited to the conditions of using the martyrs’ personal interests for commercial profits,seriously infringing on the rights and interests of close relatives and damaging the public interest but not constituting a criminal offense,as well as clarifying the subject,amount and vesting of punitive damages.In addition,the establishment of a unified heroes and martyrs information database,determine the permanent protection period,etc.should be as supporting measures.