How can we find some authoritative legal cases when we are doing a research on visiting rights?

Ten classic cases and analysis of personality right

First, the case of "What a Bai Yutang". 1987

Reason for selection: the earliest media defamation case.

"Case" 1985 65438+ 10 18, a daily newspaper published a long newsletter "Rose Complaining", which was reprinted by People's Daily, and reported the story of Wang Moumou, a statistician of a county agricultural machinery company, fighting against the unhealthy trend of unit leaders. Later, the female writer Liu went to the county to experience life. According to some people's reaction, she thought that the content of Rose Complaint was inaccurate, and wrote Documentary Novel and Specialty Wang Moumou with the purpose of "clarifying right and wrong and recovering the serious difficulties brought by Rose Complaint". The article used his real name and claimed to show it to Wang. In the dialogue between the characters in the article, he used goblins, monsters, hooligans, mad dogs, political swindlers, pickpockets, rebels, Jiangxi specialties, consistent bullies, peppers, and so on. This article was published in four magazines: Women's Literature, Selected Legal Literature, He Jiang Literature and Wen Hui Monthly, with a circulation of 64 copies. 90 thousand copies. Wang moumou sued the court, demanding that Liu and the publication that published the work bear civil liability for infringing the right of reputation. The court supported the plaintiff's claim.

The "Comment" case is the earliest influential case of infringement of the right of reputation after the implementation of the General Principles of Civil Law. The typicality of this case lies in: first, it involves the infringement of literary works, and whether writing novels will infringe on personality rights. The answer to the case is that literary works and any other written works can constitute forms of infringement as long as they are used to insult and slander others. Second, in works with basically true facts, only insulting language constitutes tort liability. The answer to the case is that no matter whether it is a documentary article or a commentary article, the facts are untrue, which of course constitutes infringement; If the facts are true, but the use of insulting and defamatory language damages the reputation of others, it also constitutes infringement. Third, how to identify the damage facts that constitute infringement of reputation rights. The law does not require the victim to have the consequences of killing himself. This is the fact of mental damage, which can constitute the damage fact of tort liability. But insulting and defamatory words have been known by a third party, that is, "publishing", which is the damage fact that causes infringement. Therefore, this case is very classic and plays an important role in the development of personality right law.

The second is the case of "the privacy of female managers was publicly criticized". 1987

Reason for selection: The infringement of privacy was first identified as the case of infringement of reputation.

"CaseNo." 1987, the defendant Qu Mou served as the deputy manager of a supply and marketing company, and the plaintiff Hong Mou served as the company manager and secretary of the party branch. The two men didn't cooperate tacitly at work, and Qu was biased against Hongmou. Once Hongmou went out and forgot to lock the desk drawer. Qu took the opportunity to see it. I saw a diary of Hongmou and read it without authorization. He found that Hongmou recorded her love, nostalgia and homesickness for her first boyfriend in her diary. She poured out her love for her boyfriend, compared herself to Anna, compared her boyfriend to W. Lenski and compared her husband to karenin, and felt depressed and unable to get rid of it. After Qu saw it, he wrote down the relevant contents, sorted out the materials that proved Hong Daode's corruption and unhealthy life style, made several copies, sent them to relevant departments such as organization, discipline inspection and supervision, and held a staff meeting of the company. At the meeting, he read out some contents in Hong's diary and made exaggerated and distorted explanations. After Hongmou returned to the unit, the employees alienated him, and the relevant leaders talked to him again. Hongmou knows the inside story. In order to protect her privacy and reputation, she filed a lawsuit with the court, asking the court to order the defendant to stop the infringement, apologize and compensate for the losses. The court held that Qu's behavior constituted infringement and supported the plaintiff's claim.

The General Principles of Civil Law in the Commentary does not stipulate the right to privacy, so whether the right to privacy is a personality right is questioned by many people. In practice, cases of infringement of privacy continue to occur, and the victims need legal protection. In the judicial interpretation, the supreme judicial organ determines that the right to privacy is indirectly protected, that is, if the victim's reputation is violated due to the violation of the right to privacy, it shall be dealt with according to the legal provisions of the right to reputation. This case is the most typical one. Facts have proved that the indirect protection of privacy has played a certain role, but without the establishment of a direct protection system for privacy, it is impossible to fully protect privacy. Although the Supreme Court made a judicial interpretation in 200 1 to directly protect privacy interests, it is obviously wrong to only admit that privacy is a personal interest rather than a right. can

In other words, privacy is one of the most popular concepts of personality right in recent ten years, and the progress of social civilization requires the improvement of legislation and legal protection measures of privacy. At the same time, this case also raises a question, that is, isn't the personality right without legal provisions a personality right? The view that "personality right is legitimate" has been seriously questioned.

Third, the "Lotus Girl" case. 1988

Reason for selection: the earliest case that occurred and therefore made a judicial interpretation to protect the reputation and interests of the deceased.

Plaintiff Chen Mou is the mother of the late artist Lotus Girl before liberation. 1940, Lotus Girl participated in the performance of the Brothers Troupe established by Qingyun Theater, and has been very popular in the local area since then. Later, she died in 1944 at the age of 19. Defendant Mou Wei wrote a novel featuring Lotus Girl. He went to Chen Mou's home three times to learn about her life and artistic career, and asked her brother for photos. Later, he wrote the novel Lotus Girl with * * * 1 10000 words. The novel uses the real name and stage name of Lotus Girl, and is called Chen in the novel. The novel fictionalizes that during the two years from the age of 17 to the age of 19, Miss Lian fell in love with three people, negotiated marriage and accepted the bride price of the other party three times. It says that someone is married, and Lotus Girl is "100% willing" to be his concubine. The novel also fictionalizes the plot that Miss Lian was raped by the gang leader and big bully at that time, but refused to resist. Finally, it was insinuated that Miss Lian had a sexually transmitted disease and died with the wrong needle. After the novel was completed, the author contributed to an evening paper without consulting the plaintiff and others. The evening paper began to serialize novels from April 1987, with illustrations as supplements. During the serial period of the novel, the plaintiff and his relatives went to the Evening News twice and demanded to stop publishing on the grounds that the illustrations and fictional plots of the novel damaged the reputation of the lotus girl. The newspaper said that if Lian's relatives write articles criticizing novels, they can publish them; At the same time, on the grounds that the newspaper should be responsible to the readers, the novel title map was revised and continued to be serialized. The plaintiff took Mou Wei and Evening News as defendants, and sued the court, demanding that the defendant bear civil liability for infringing the reputation of the deceased.

"Comments" The General Principles of the Civil Law stipulates that the right of reputation is protected by law, but it does not stipulate whether the reputation interests of the deceased should be protected and how to protect them. This case raises this issue for the first time, which needs to be solved theoretically and practically. The discussion and concern about this case is extremely extensive, which not only has a great influence on academic and judicial practice, but also plays an important role in popularizing the law. The Supreme People's Court's judicial interpretation of this case should protect the reputation interests of the deceased, and his close relatives have the right to file a lawsuit to protect the personality interests of the deceased. Therefore, it has a great influence on China's legislation, judicature and theoretical research. Today, the protection of the personal interests of the deceased has been written into the draft civil code of personality rights, which is no longer a controversial issue. On this issue, the role of this case cannot be forgotten, and its glory will last forever.

Fourth, the case of "figure painting exhibition storm". 1988

Reason for selection: the most sensational and protracted case of infringement of portrait rights.

"Case" A, B and C are all model workers in an art institute. At the time of recruitment, the Academy of Fine Arts and the model worker agreed to handle the recruitment according to the recruitment brochure. According to the regulations of the Academy of Fine Arts for recruiting model workers, model workers are used for classroom teaching and sketching, and their work is confidential. The school's regulations on the use of model workers are: when using model workers in teaching, teachers should fill in the model worker form and get the approval of the department head; Teachers should also fill in the purchase order and get the approval of the department head. The order must indicate the labor model used by the unit that contracted the creative task, and the labor model fee will be repaid from the manuscript fee when the task is settled. According to the above regulations, three model workers provide services for the Academy of Fine Arts. 1988, the first national human body oil painting exhibition was held, with an unprecedented scale. There was a long queue in front of the China Art Museum. Without the consent of the three model agencies, oil painters will also publicly display the figure paintings created by the three model agencies, and the author and the Academy of Fine Arts will benefit from the exhibition. On the grounds that the defendant violated the original agreement, the plaintiff believed that the public display of his human works violated his portrait right and requested the court to protect it. It was not until the end of 1990s that the trial of this case ended, and the judgment protected the legitimate rights and interests of the plaintiff.

The typical significance of the "Review" case is not particularly significant, but it has a great influence. At that time, the first exhibition of human body oil painting was a sensation, and the dispute over portrait rights had a great influence. Therefore, it is extremely important to popularize the legal knowledge of personality rights. The reason why the case was kept for ten years before the trial ended was for "cold treatment". In this case, the main legal issue involved is the particularity of the protection of model portrait rights. The model's portrait right should be protected, but due to the particularity of providing models with creative works, the protection of its portrait right should be.

There are special rules. When we drafted the expert's suggestion draft of the draft civil code, we drafted a clause, that is, "a natural person accepts the agreement of being a mannequin and is regarded as giving up the portrait right of a work created with his body image." Where there is a special agreement between the parties, such agreement shall prevail. "The reason for this rule is that since you accepted the agreement as a mannequin, you are allowed to create works with your human body. If you are allowed to create works with your human body, not allowed to show or sell your works, and not allowed to claim the portrait right of these works, it is meaningless to provide mannequin creation. In this case, because the two sides agreed on the confidentiality clause of the model's identity, it was considered as an infringement of the model's portrait right. If it is not so agreed, it should not be regarded as infringement. On the other hand, it took ten years for a civil dispute case to be settled, which clearly shows the interference of "the will of the Chief Executive" in civil trial activities. This does not meet the requirements of the judicial law.

Five, "unauthorized use of patient portraits" case. 1990

Reason for being selected: A typical case in which the right to portrait is infringed without judicial support.

"Case" Zhu suffered from myasthenia gravis of eyelid when he was a child, and went to the Center for Prevention and Control of Ophthalmic Diseases 1967 for treatment. At the request of the attending doctor, Zhu's parents provided photos of Zhu's symptoms. After receiving Zhu's treatment data, the doctor took over Zhu's treatment and basically recovered. According to the doctor's request, Zhu Haiyang's parents also provided a photo of Zhu Haiyang after she recovered and gave it to her as medical information. Chen Mou summed up his decades of treatment experience and wrote a book, Diagnosis and Treatment of Myasthenia Gravis with Chinese Medicine, which was published at his own expense. Later, Chen Mou opened an amateur expert clinic in the Institute to treat this disease, and withdrew 50% of the registration fee. From 65438 to 0989, he wrote a manuscript and published it in a science and technology newspaper, introducing the symptoms of the disease and Chen's treatment effect, introducing Chen's sitting time and works, and distributing two photos of Zhu before and after treatment without authorization. Zhu believed that the Science and Technology News Agency used his portrait to publish articles for profit without his consent, which infringed on his portrait right, so he sued the court and demanded compensation for mental damages. The court held that publicizing medical knowledge was beneficial to society, and this behavior did not constitute infringement, so it rejected the plaintiff's claim.

Comments: In this case, the two defendants used two photos of the plaintiff without their consent, one of which was a portrait of his sick face, which not only violated the plaintiff's portrait right, but also violated the plaintiff's privacy right, causing serious mental damage to the plaintiff. During the trial of this case, two questions were raised: First, does "for profit" stipulated in Article 100 of the General Principles of Civil Law constitute an important element of infringement of portrait rights? Since it is stipulated by law, the affirmative statement should be an important element, while the negative statement is only a statement, not a provision on tort liability. The dominant opinion in the discussion is the latter. Second, whether the disclosure of medical achievements constitutes a legitimate defense of the right to portrait. It is a legal defense to use other people's portraits and privacy for the public interest, but can this publicity of medical achievements reach such a level? On the one hand, the right to portrait and the right to privacy are absolute rights of human beings, unless it is particularly important to sacrifice the public interest of personality rights, but this case has not reached such a level; On the other hand, even if it is necessary to introduce medical achievements and use portraits of others, appropriate measures should be taken to protect the obligee himself so as not to directly sacrifice his personal interests. Although the judgment in this case is not satisfactory, it has extremely important typical significance in these aspects.

Six, "unauthorized removal of organs of the deceased to make specimens" case. 1992

Reason for being selected: The first typical case of suing a corpse for infringement was supported by the judgment.

"Case"1991116. Plaintiff Yang's husband, Plaintiff Wu Yi and father were admitted to the defendant general hospital for treatment due to illness, and died of sepsis and multiple organ failure in the early morning of the same year. During his treatment in Wu Jia, the defendant had consulted experts from the Medical College about his illness, and experts from the two academies had different opinions on the diagnosis of Wu Jia's illness. During this period, Wu Jia's condition deteriorated rapidly. After Wu Jia's death, the plaintiff suspected that the defendant's diagnosis and treatment were wrong, and asked the defendant to conduct an autopsy on Wu Jia's body in the presence of experts from other hospitals to find out the cause of death. The defendant did not give a clear answer to the "additional conditions" put forward by the plaintiff. On the day of Wu Jia's death, the medical staff in our hospital conducted an autopsy on Wu Jia's body, and took out the heart, liver, lungs and other organs for research. The next day, the plaintiff was very dissatisfied when he learned that Wu Jia's body was dissected. In the process of finding the defendant to solve the problem, the two sides had an argument. 1992 65438+1On October 24th, the plaintiff filed a lawsuit with the court. The defendant counterclaimed the plaintiff for damaging his reputation. The court supported the plaintiff's claim and rejected the defendant's counterclaim.

The case of "Comment" is not the first case to ask for the protection of the body. It happened in Hebei province before.

In similar cases, the court did not support the plaintiff's claim on the grounds that there was no legal provision. Whether a natural person's body should be protected after his death has always been a controversial issue. According to the precedent, the court that accepted the case thought that it was unreasonable and habitual that a person's body was not protected by law, so it directly made a judgment that the defendant's behavior violated the personal interests of the deceased and should bear the tort liability. This is a successful verdict. However, there are different opinions on what reasons to protect the remains of the deceased. Some people think that the body left after death is the object of ownership, and its close relatives enjoy this right. This theory is wrong. I put forward a theory of extended protection of body rights, which means that after the death of a natural person, the body rights enjoyed before his death become physical interests, which are embodied in the body and protected by his close relatives. Of course, there are other theories. In a word, after this case, China's judicial practice began to protect the body legally, and the merit of this case laid the foundation for this protection. In addition, this case is also of great significance to determine whether the body right is an independent personality right, because the General Principles of the Civil Law only stipulates the concept of the right to life and health, and whether it includes the body right is controversial in theory. Since the body of the deceased is an extension of the body right, then the body right is of course.

Seven, "suspected mental illness is compulsory treatment" situation. 199 1

Reason for being selected: Is personal freedom a typical case to discuss specific personality rights?

"Case" During the Cultural Revolution, Zhang, a doctor in a miner's hospital of a mining bureau, often made some "alternative" remarks about Lin Biao and Jiang Qing. The leader of the hospital thinks he is insane. According to the "outpatient impression" and "preliminary diagnosis" of schizophrenia issued by individual doctors in mental hospitals, Zhang is not allowed to go to work after research (if he is not allowed, Zhang may be convicted and sentenced for "pathogenic attack". After "bringing order out of chaos", the leaders of the new hospital decided to pay Zhang according to the sick leave treatment. Zhang Xin believed that the leader decided not to go to work and the salary was paid as usual. If their wages are deducted, they insist on returning to work. The leaders of the hospital thought that Zhang was mentally ill and could not go to work, issued a document that Zhang did not have independent capacity, and appointed a guardian (exercising court power) for him. Zhang refuses to accept. Without the consent of Zhang himself and his family, the hospital sent someone to forcibly send the car to a mental hospital for compulsory hospitalization for 38 days. The conclusion of the hospital is: "The patient has been in our hospital for more than a month, and no obvious mental symptoms have been found, and no antipsychotic drugs have been given." Zhang sued the people's court for violating personal freedom and reputation. The court held that the defendant's behavior violated the plaintiff's reputation right and determined the tort liability; The idea of infringing on freedom is not supported.

The "Comment" case is the first case of personal freedom violation in China. However, the court held that the right of personal freedom was not defined as the right of personality in the General Principles of Civil Law, so it could not be regarded as an infringement of personal freedom, so it was regarded as an infringement of the right of reputation. This case sharply puts forward a question-the view of "legal negation of personality right", that is, personality right cannot be implemented in law, and the provisions of civil law on personality right are only listed, and general personality right should be stipulated as a general summary, so as not to make those personality rights that are not expressly stipulated in law or personality interests unable to be protected because of the lack of explicit laws. However, many judicial personnel adhere to the principle of statutory rights, and believe that rights without legal provisions are not rights, and so are personality rights. This case is the most typical representative. Regrettably, in the draft law on personality rights, personal freedom is stipulated as the content of general personality rights, not specific personality rights. Another argument is that personal freedom is a constitutional right, so it is a public right and cannot be protected by civil law. This is also an absurd view. All rights with the nature of personality rights stipulated by law need the protection of civil law. In this regard, the draft civil law also has similar provisions on personality rights, which solves this problem.

Eight, "young women's supermarket was searched" case. 1992

Reason for being selected: a case that triggered a discussion on general personality right and its protection and finally legislated.

Case 199 1 year 12.23. Two young women, Wang and Ni, are shopping in a supermarket. When they left the market after shopping, the supermarket security guard chased them out, stopped them and asked them if they had taken anything from the supermarket without paying. The two told the truth and said that they had paid the money, but the security guard still didn't believe it. They took them to the cashier and told them that the store had the right to check what customers carried. Wang angrily asked them to check, but the security guard still didn't believe it. They took them to the office for questioning, took off their hats, unbuttoned their clothes and opened their handbags for inspection, forcing two young women to cry. It was not until nothing was found in the end that the store apologized to the two and released them. Wang and Ni feel that their personality has been insulted and their reputation has been affected.

Damage, strong mental stimulation, causing serious mental pain, so he sued the court. After mediation by the court, the supermarket admitted its mistake and compensated the two plaintiffs, mental damage compensation, for 2,000 yuan each, and the two plaintiffs withdrew the lawsuit.

The case of "Comment" sued for infringement of the right of reputation, but it involved not only the protection of the right of reputation, but also the issue of personal dignity and the identification and protection of the general right of personality. Personal dignity is the core content of general personality right, which is generally regarded as a synonym of general personality right in legislation of various countries. Legislation stipulating personal dignity is equivalent to stipulating general personality rights. The constitution of our country stipulates personal dignity, but in the General Principles of Civil Law, personal dignity is stipulated in the provisions of the right of reputation, ignoring the nature, status and function of the general personality right. When this case happened, the legislature was drafting the Consumer Protection Law. Experts believe that this kind of behavior violates the general personality right, that is, personal dignity. In civil law, if the status of general personality right is not established, it is impossible to improve the protection of personality right of civil subjects. Based on this concept, Articles 14 and 43 of the Law on the Protection of Consumers' Rights and Interests stipulate the protection of consumers' personal dignity and establish the status of general personality rights. Now the second article of the draft civil code, Personality Right Law, clearly stipulates this, which is the most important achievement in the development of personality right law in this case.

Nine, "the young girl was raped and aborted" case. 1994

Reason for selection: the first case of claiming compensation for mental damage when sexual autonomy is violated.

"Case" Shimou, a girl of 13 years old, was raped by criminal Liu on1July 26, 994, resulting in her pregnancy, abortion and treatment costs 1300 yuan. After investigation by the public security organs, Liu was sentenced to eight years in prison for raping a young girl. In criminal proceedings, Shimou's father, as the legal representative of the victim, filed an incidental civil action, demanding that the criminal defendant compensate the property loss and mental damage that violated the autonomy (then called the right of chastity), and the court refused to allow it. Later, the teacher paid a lawsuit to the civil court, and took Liu Lie as a civil defendant, demanding him to bear civil liability for infringing his autonomy.

"Comment" This is the earliest and most representative case of infringement of autonomy. But the impact of this case is not big enough. The most influential case of its kind occurred in 200 1, and Wang was asked to pay compensation for mental damage. The court of first instance ruled in favor, and the court of second instance rejected the plaintiff's claim according to the judicial interpretation of the Supreme Court. On the issue of sexual autonomy and its protection, there are prejudices in legislation and judicature. Sexual autonomy refers to the right of the subject to control his own sexual interests independently, which is stipulated in both criminal law and administrative law, but not protected in civil law. As a result, in the face of these prejudices, Wang, the victim of this case, and many similar victims whose rights have been violated, can't get the relief of mental damage compensation. The draft civil law did not accept such an opinion, and I don't know when the solution to this problem will come to fruition.

X "Claim for Fetal Damage". 200 1

Reason for selection: It is the first time to put forward a case that should protect the interests of fetal personality.

"Case" female citizen Jia was pregnant for more than 4 months. One day, she traveled in an Alto car driven by the taxi company Qi. During the driving of the taxi, Huang and Zhang, who are repairing the car in the right lane ahead, were injured. Jia, who was sitting in the passenger seat of a taxi, was also injured at the same time, with a comminuted fracture of his right forehead and an intracranial hematoma. The traffic police department determined that drivers Qi, Huang and Zhang violated relevant traffic regulations and were equally responsible for the accident. Jia believes that taking so many drugs after a car accident will definitely have an impact on fetal health. According to the forensic appraisal of the Institute of Science and Technology of the First Intermediate People's Court, Jia is a 10-level disability, and the compound sulfaisoxazole and other drugs taken after the injury have certain effects on the growth and development of the fetus. However, due to the lack of specific dosage, medication method and time, as well as individual differences, the specific impact on fetal growth and development can not be determined. After Jia was hospitalized, Jia had to leave the hospital because the driver Qi and others refused to pay the medical expenses. After Jia gave birth to a child, after many unsuccessful negotiations with the other party, he sued the court and demanded that the three defendants compensate him for medical expenses, disability subsidies, and fetal damages totaling 200,000 yuan.

"Comment" is not a new problem in theory, nor a tentative civil law measure, but a mature civil law system, which is basically stipulated in civil laws of all countries. The typical significance of this case lies in the fact that this issue was raised for the first time in practice and the legal procedure was formally started. The rules for protecting the fetus' personality interests are as follows: First, when the fetus is damaged in the mother's body, when the damage is determined after its birth, the right to claim damages arises and can be exercised. Second, if the fetus dies after birth, the heir shall obtain the claim for damages. Third, the birth is death, which damages the mother's body or health, and the mother has the right to claim damages. This is an important aspect of the protection of personality right, and these three basic rules are also extremely important protective measures, which must be stipulated in the civil code of personality right. Otherwise, it is unbalanced in the system and the protection of personality interests only to protect the personality interests of the deceased without protecting the personality interests of natural persons during the period before birth. For this case, whether the fetus was damaged after birth has not been confirmed, so it is not yet possible to determine the issue of compensation.