| News media infringement mainly involves the spiritual rights and interests of civil subjects.Because news media has the characteristics of fast dissemination,wide coverage,and great influence,news media infringement will cause serious damage and consequences,and the main form of responsibility is to undertake mental damage compensation responsibility.This paper mainly focuses on the issue of moral damage compensation for infringement of personality rights by the news media.It mainly analyzes and discusses through five chapters,the first chapter in the overview of the news media infringement of personality rights to bear the main moral damage liability,and analyze the controversy of the determination of moral damage liability.The second chapter analyzes the causes of the controversy through legislation and judicial cases.The third chapter analyzes the legislative and judicial solutions to the disputes at the present stage and the dilemmas that exist.The fourth part analyzes the practices of foreign countries in the way of determining the liability for moral damages for infringement of personality rights by the news media,so as to provide a reference experience for China.The fifth chapter is to put forward some improvement proposals for the determination of moral damages for infringement of personality rights by the news media,taking into account the current situation of legislation and justice in China and abroad.There are two main types of tort liability for news media infringement of moral personality rights: one is based on the right of the right holder to file a claim for personality rights before the occurrence of damage,the news media need to bear the responsibility of stopping the infringement,removing obstacles and eliminating danger;the other is based on the right holder to file a claim for compensation for tort damages,the news media need to bear the tort liability of eliminating influence,restoring reputation,making apologies and compensating for moral damages.After screening 258 relevant infringement cases,it is found that the news media are mainly liable for moral damage compensation when they assume the responsibility of infringing on personality rights.In terms of compensation for moral damages,there is a big controversy in academic circles about the scope of the subject of compensation,the way of recognition,and the amount of compensation.The reason for this is that the design and adjudication of the rules on compensation for moral damages for infringement of personality rights by the news media in China have undergone considerable changes,and there are even inconsistencies.With the gradual improvement of the rule of law,especially the Civil Code of the People’s Republic of China promulgated in 2020 and the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in Determining Liability for Mental Distress Damages in the Trial of State Compensation Case,both of which provide uniform provisions on whether deceased persons and legal persons can enjoy the right to claim compensation for moral damage.The Civil Code introduces a dynamic system approach to determine whether and to what extent the news media should be liable for tort by taking into account multiple factors of the perpetrator and the victim.Although the legislation and justice of moral damage compensation for news media infringement are being improved,there are still more problems,such as both academic and practical circles have not yet given a precise definition of “serious mental damage”,resulting in different judgments of serious moral damage in judicial practice.For another example,although there are new theoretical methods to identify the tort liability of personality right from the perspective of dynamic system,it also leads to the coexistence of traditional constituent elements and dynamic system identification methods.The choice of different identification methods may lead to the difference in identification results and some conflicts.In addition,by analyzing similar cases of news infringement on the right of personality,it is found that there are great differences in the determination of the amount of spiritual damage compensation in judicial practice,not only between cases,but also in the whole development process of judicial practice of spiritual damage compensation,there are also significant differences in the amount of mental damage compensation between the1980s-1990 s and the present stage.In dealing with these problems,foreign countries have tried to put forward corresponding solutions in legislative and judicial practice.For example,foreign countries judge whether the infringement of the right of personality by the news media constitutes “serious mental damage”,by comprehensively considering many factors such as the publication location of the article,the number of readers and viewers,sales volume and so on,and on this basis,use the dynamic system to determine the scope of responsibility of the news media.In addition,some common law countries generally believe that the results of the news media in infringement are more harmful,so the punishment function of spiritual damage compensation is more prominent in judicial practice,and they believe that the news media bear a higher amount of spiritual damage compensation.The legislation and judicial practice of foreign countries provide reference experience for China on the determination of spiritual damage compensation for news media violations of personality rights.First of all,we should clarify the different situations of “serious mental damage” caused by news infringement on personality rights,such as judging in combination with the content of news infringement,the scope of communication,whether the news media have taken remedial measures and the mental status of the victims;Secondly,it introduces the dynamic system theory,but it needs to clarify the applicable conditions of the two identification methods,such as identifying the responsibility of news infringing on the right of personality with the theory of constitutive elements,and identifying the scope of spiritual damage compensation for news infringing on the right of personality with the dynamic system method on this basis.Construct the guidance scheme of mental damage compensation,pay attention to the judges’ interpretation and reasoning of judicial discretion,and clarify the types,scope and proportion of influencing factors,so as to limit the judges’ discretion,and reduce the difference in the amount of mental damage compensation.Thirdly,we can learn from the practice of common law countries,give play to the punishment function of spiritual damage compensation,improve the amount of spiritual damage compensation,play a warning role for the news media,and reduce or even avoid the infringement of personality rights. |
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