Research On Tort Remedy System Of Commercial Personality Right

Based on the property right attribute of commercial personality right different from traditional natural person’s personality right,the development and perfection of the remedy system of commercial personality right infringement plays a prominent role in the prosperity of commercial activities and the protection of the legitimate rights and interests of the owners of commercial personality right.Many countries have carried out beneficial practice in the infringement remedy of commercial personality right,and strive to create a stable institutional environment for the prosperity of commercial activities.As early as the "General Principles of Civil Law",China defined the reputation rights of "citizen" and "legal person" in the"personal rights" under the type of "civil rights",which was the embryonic form of China’s commercial personality rights system.After the civil Code came into effect,articles 110 and 990 of the Civil Code have become the legal provisions providing programmatic reference for China’s commercial personality right system.Through the analysis of the judicial practice of China’s commercial personality right infringement remedy cases related to the adjudication of disputes,the comparative analysis of China’s commercial personality right infringement remedy and the relevant provisions of foreign countries found that China’s commercial personality right infringement remedy can be improved.Firstly,in the dispute settlement of the infringement of commercial personality right,China often adopts the provisions of the law scattered in tort Liability Law,Anti-Unfair Competition Law and other laws to realize the indirect remedy of commercial personality right.This kind of tort remedy has played an important role in the background that there is no law on commercial personality right.But there are also targeted is not strong,easy to lose the lack of one;At the same time,because of the difference in the way of thinking of judges,it is easy to lead to the phenomenon of "the same case is different".The "Civil Code"adopts the idea of the integration of civil and business,which provides a lot of space for the interpretation of commercial personality rights.We should seize this new opportunity to provide more complete indirect tort remedy for commercial personality right through the supplementary thought of legal interpretation,and make up for the deficiency of decentralized remedy.Secondly,for the remedy of commercial personal right when it is infringed,the legal basis is mostly sought from tort Liability Law,and in accordance with the value principle of Tort Liability Law,the "fill up" rule is mostly followed in property remedy.It ignores the more serious economic losses that may be caused by the infringement of commercial personality interests such as goodwill,commercial credit and commercial secrets.From the perspective of the perpetrator of the infringement of commercial personality right,the economic compensation rule of "filling up" makes the perpetrator to carry out the infringement without taking too high risks,and it is difficult to play the due deterrent role.We should perfect the "punitive" economic compensation and remedy mechanism of commercial personality right infringement,and stipulate a higher punitive economic compensation amount on the basis of compensatory compensation amount,which is helpful to provide a higher degree of remedy for the owners of commercial personality right.Secondly,in the new era,the scenes and ways of infringement of commercial personality rights are more novel than before.Facing the new form of cases,the judicial organs lack of practical experience.In this regard,guiding cases can be used to guide the adjudication of new commercial personality right infringement remedy disputes.The application of class case guidance system can not only form a summary of the previous trial experience,but also accumulate judicial experience for the remedy of commercial personality right infringement.At the same time,it can guarantee the "kind of case type of judgment" and make up for the deficiency of legislation and judicial interpretation of commercial personality right.The rapid development of Internet technology also makes the infringement of commercial personality right through the network common.The virtual nature of the network aggravates the difficulty of locking the identity of the tortfeasor.We should make more efforts to implement the network real-name system,and form an emergency remedy mechanism to deal with the network infringement of commercial personality right,so as to better display the remedy effect of infringement of commercial personality right.Thirdly,The tort remedy of commercial personality rights in China mostly seeks legal basis from the Title VII of the Civil Code(the Tort Liability Law before the promulgation of the Civil Code),and follows the "fill-in" rule in property remedy,ignoring the potential economic loss to future commercial activities when commercial personality interests such as goodwill,commercial credit and trade secrets are infringed.The commercial personality interests such as goodwill,commercial credit and trade secrets are infringed upon,which may cause more serious economic losses to future commercial activities.From the perspective of the perpetrators of commercial personality rights infringement,the "fill-in" type of economic compensation rules make the perpetrators do not have to bear excessive risk to carry out infringement,the cost of violation is low,and it is difficult to play a due deterrent effect on them;from the commercial personality rights rights subject,it is also difficult to the commercial personality rights infringement of the rights of the In terms of commercial personality rights,it is also difficult to provide adequate remedies for infringement of commercial personality rights.The mechanism of "punitive"financial compensation for commercial personality right infringement should be improved,and a higher amount of punitive financial compensation should be provided on top of the compensatory compensation,which can help provide a higher degree of remedy for commercial personality right holders.Secondly,it is also important to make a reasonable valuation of the economic loss caused by the infringement of commercial personality rights.The specific determination of the amount of damages suffered by commercial personality right infringement can be confirmed by referring to the evaluation method of intangible asset value in practice;the evaluation process of commercial personality right infringement damages should also be regulated.Again,the insurance system and the statutory compensation system can be used to guarantee the remedy of commercial personality rights infringement:the insurance system has the advantage of short response period,which can help improve the economic situation of the victims of commercial personality rights infringement in the shortest possible time and help commercial entities to get out of the dilemma of poor financial turnover caused by commercial personality rights infringement;the statutory compensation system can be used as the remedy of punitive damages.The statutory damages system can be used as a supplemental remedy when the amount of damages cannot be valued in a specific amount.