Research On The Tort Liability Of Violating The Personality Interests Of Heroes And Martyrs

Article 185 of the Civil Code stipulates that those who violate the personal interests of heroes and martyrs and harm the social public interests shall bear civil liability.With the promulgation and implementation of this article,the protection of the interests of heroes and martyrs in the law has risen to a new height.Since this provision directly inherits the provisions on the protection of the personal interests of heroes and martyrs in Article 185 of the General Provisions of the Civil Law,this provision does not appear in the Draft General Provisions of the Civil Law from the first draft to the fourth draft,but is proposed by the Legal Committee of the National People’s Congress and written into the formal provisions on the basis of the suggestions of NPC deputies during the final deliberation of the Draft General Provisions of the Civil Law.It is fair to say that the provision was drafted too hastily.It is precisely because of this reason that there are some disputes in theory and judicial practice,and further interpretation is needed.Therefore,the understanding and application of this article can not be limited to the interpretation of the meaning,but it is necessary to combine the relevant legal provisions to improve this article,so that this article can better play its special role in safeguarding the interests of heroes and martyrs.This paper is divided into five parts.The first part is an overview of the personality interests of heroes and martyrs.First,it defines the concept of "heroes and martyrs" based on the textual interpretation.Secondly,the author points out the content of the hero’s personality interest explicitly stipulated in Article 185 of the Civil Code and the difference between it and the general deceased’s personality interest protected by Article 994.Finally,through its legislative development,it clarifies the legislative value of this article,and points out that its legislative purpose is to safeguard the social public interest.The second part makes clear the elements of tort liability for violating the personality interests of heroes and martyrs and the forms of expression of tort in real life.The third part is the statistics of relevant cases in judicial practice and through the analysis and comparison of typical cases,pointing out the existing problems in the application of Article 185 of the Civil Code in judicial adjudication.The fourth part combines the application of the judicial decision to this article with the disputes in the legal theory circle,and specifically points out the problems in the identification of the liability for the infringement of heroes’ personality interests: first,the scope of the protection subject is not clear,second,the object of protection is not comprehensive,and third,the form of liability is not clear.The fifth part is aimed at the above problems,put forward this article on the heroic personality interests responsibility identification of the point of view.First of all,in the determination of the scope of protection objects in Article 185 of the Civil Code,the word of speech of "hero" should be positioned as an independent noun,and it should be limited to the hero who has been sacrificed;And the object of protection of this article should also include those who have not been rated as heroes and martyrs at the time of the infringement,but have a positive significance in shaping the social consensus and mainstream values of our country.Secondly,the author believes that the scope of protection objects in Article 185 of the Civil Code should be moderately expanded,and other personal interests and personality objects of heroes that will cause damage to social public interests should also be included in the objects protected by this article.Finally,it puts forward some suggestions on perfecting the form of responsibility for violating the interests of the personality of the British martyrs.Property liability should be applied in public interest litigation brought by the prosecution,and the management and application of compensation should explore the "court review + foundation management model";The standard of compensation for mental damage should be clearly defined in private interest litigation.