Research On The Rescission Right Of Portrait Licensing Contract

With the development of commodity economy and the change of network technology,the property benefit of portrait right gradually appears,and the right owner can gain some income by using it actively,which has gradually entered the research horizons of scholars all over the world.In the Civil Code,personality right constitutes a separate part and the rescission right of portrait licensing contracts are newly added.However,there remains room for improvement.Based on its systematic status,the portrait licensing contract should be distinguished from general contracts,which reflects the attitude and positioning of the legislator towards such contracts.Article 1022 of the Civil Code prescribes two types of rescissions right of portrait license contracts.Paragraph 1 prescribes the rescission right of non-fixed-term contracts,and paragraph 2 prescribes the rescission right of fixed-term contracts.In terms of the requirements for the rescission of a portrait license contract,the former was limited to a "non-fixed-term" contract,while the latter was limited to a "fixed-term" contract and the owner of the portrait right must have a "just cause".In practice,the courts may identify "fixed-term" and "non-fixed-term" inconsistent with each other.For the identification of "just cause",the connotation and type shall be analyzed,and relevant factors shall be sorted out to strengthen the identification of subjective and objective "just cause".Article 1022 of the Civil Code also prescribes the rules for exercising the rescission right of portrait licensing contracts.In either a contract with a fixed term or a non-fixed term,the party who is entitled to terminate the contract shall give "a reasonable advance notice" to the other party.However,in theory and practice,details of the "form" and "content" of notice are unclear,and there are unlinking dilemmas in the determination of "reasonable period".In addition,the termination of portrait licensing contracts will have certain impact on the subsequent legal relations.In other words,the legal consequences of termination shall be identified and assessed,which can be manifested in how to determine the amount of damages and how to deal with the derivative of portrait.According to the legislative purposes of Article 1022,there should establish a system of rules on the rescission right of portrait licensing contracts and determine the value orientations of the rescission right of fixed-term contracts and non-fixed-term contracts.Summarizing and arranging judicial cases can clarify the criteria of "just cause".Constructing the legal balance mechanism of the rescission right of portrait licensing contracts can perfect the act of exercising the rescission right.Returning to the essence of the right of personality embodied in the portrait licensing contracts,the definition of damages can be amended.Based on the classification of the derivative of portrait,the specific treatment is judged.