The Interpretation and Application of the New Rules of the Civil Code (Personality Rights Edition) sorts out the new rules arising from the general discussion to the sub-discussion and then to the protection of personal information in the form of 32 topics, and each topic is arranged according to the style of "law" (code provisions), "source" (origin and evolution), "meaning" (normative intent), "example" (typical cases), and "interpretation" (legal interpretation and systematic interpretation). This book is a blockbuster work on the interpretation of new rules of civil law, which is of great significance for exploring and forming an independent academic system and discourse system of Chinese civil law.
The application of dynamic system theory in the compilation of personality rights
Text/Wang Liming
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The following is an excerpt from Topic 9 of this book, please refer to the paper book for the full version
At the heart of the dynamic systems theory view is to identify the factors and factors that need to be considered, rather than giving judges unlimited discretion. These factors and factors can only be clarified through legislation and arranged in an orderly manner, and the higher the "factors" are arranged, the more important they must be considered.
In the compilation of the civil code of the mainland, the compilation of personality rights has also boldly absorbed and borrowed from the dynamic system theory on the basis of summarizing these experiences. Many of the articles in the Personality Rights Compilation embody the idea of dynamic system theory, which has also become one of the important features or highlights of the Personality Rights Edition.
Article 998 of the Civil Code provides:
"When determining that the perpetrator bears civil liability for infringing on personality rights other than the rights to life, body, and health, factors such as the actor's and victim's occupation, scope of influence, degree of fault, as well as the purpose, method, and consequences of the conduct shall be considered."
Since personality rights often conflict with other rights in the exercise of personality rights, and the circumstances of infringement of personality rights are complex, it is determined that in the case of infringement of mental personality rights, the constitutive elements of tort liability cannot be completely and simply copied, so Article 998 of the Civil Code specifically sets up rules for the dynamic system theory for the infringement of mental personality rights. This article distinguishes between material personality rights and spiritual personality rights, and adopts a dynamic system theory for the establishment of civil liability for the latter, that is, considering factors such as the occupation of the perpetrator and the victim, the scope of influence, the degree of fault, the purpose of the act, the mode of conduct, and the consequences of the act, and arranging their weights in the order prescribed by law, so as to standardize the discretion of judges and achieve the purpose of precise protection of personality rights.
Article 999 of the Civil Code provides:
"Where news reporting, public opinion oversight, and other such conduct is carried out for the public interest, the civil subject's name, title, likeness, personal information, and so forth may be reasonably used; Where the use unreasonably infringes upon the personality rights of civil subjects, civil liability shall be borne in accordance with law. ”
This article requires that news reporting and public opinion supervision can only be exempted from liability if fair use is satisfied, and that acts that exceed fair use should be liable. Whether the behavior is beyond the reasonable range needs to be determined by dynamic systems theory, which integrates various factors.
Article 1026 of the Civil Code provides:
"The following factors shall be considered in determining whether the perpetrator has fulfilled the obligation of reasonable verification provided for in item (2) of the preceding article: (1) the credibility of the source of the content; (2) Whether necessary investigations have been conducted into content that is clearly likely to cause controversy; (3) The time limit of the content; (4) The relevance of the content to public order and good customs; (5) the possibility that the victim's reputation will be derogated; (6) Verification capacity and verification costs. ”
When news reports infringe on the right to reputation of others, it is important to determine whether the news media has a reasonable duty of review. The standard of reasonable review obligation is not immutable, and the actors who carry out news reporting and public opinion supervision have different review obligations under different circumstances, and they need to be judged according to the time and local conditions, and in light of the different environments in which they live, so it is not appropriate for the law to make general provisions on the verification obligation. It is for this reason that the article establishes the criteria for determining whether the duty of reasonable review has been met.
Some of the above-mentioned articles directly adopt the dynamic system theory from the legislative technology and stipulate the factors that need to be comprehensively considered; Although some legislation does not directly stipulate the factors to be considered comprehensively, in the application of law, the interpretation of "reasonable", "legitimate" and "necessary" also needs to be applied with the help of dynamic system theory. It should be noted that some of the above-mentioned provisions adopt an open-ended enumeration method in the enumeration of various factors, so they maintain a certain degree of openness.
In short, the Civil Code is the first attempt to construct a dynamic system theory in legislation, which is groundbreaking. This kind of exploration and innovation will provide a new model for mainland legislation and a greater space for the interpretation of the law.
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