摘要(Abstract)：
I.QUESTIONS Chapter three of the Tort Law of the People’s Republic of China(the Tort Law)discusses,"Circumstances to Waive Liability and Mitigate Liability",and this chapter sets up the reasons for reducing or avoiding liabilities within general tort in China.The reasons for reducing or avoiding liabilities for infringing on the right to privacy,which is a general tort,should also be included in chapter three of the Tort Law.
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作者(Author): Zhang Hong;Jiang Ying;
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参考文献(References)：
- 1 In the law of China,there are many laws referring to the protection of privacy right,such as the Constitution of the People’s Republic of China,the General Principles of the Civil Law of the People’s Republic of China,the Criminal Law of the People’s Republic of China,the Law of the People’s Republic of China on the Protection of Minors,the Law of the People’s Republic of China on the Protection of Women’s Rights and Interests,the Law of the People’s Republic of China on the Protection of Consumer Rights and Interests and other administrative rules.The inconformity of these rules causes some problems of the application of law,and brings doubts about the study of privacy right academically.
- 2 Some scholars claim to take the“defense for illegal acts”,such as Huang Ying,The Mutual Introspection of the Infringement Actions and the Privacy Right,5 Legal Forum(2002);Wang Fuyou and Gao Yong,Outline of the Defense for illegal acts of Infringement,6 Northern Legal Science(2009).And other scholars claim to take the“defenses”,such as Mu Chunming,Defenses for Infringing the right to Privacy by the News,3 Contemporary Communications(2004);and Wang Xiaobing,Systematical Analysis of News Value and Defenses of the Infringement of the Privacy Right by the News,5 Journal of Political Science and Law 9(2000).
- ③No article was found by searching CNKI with the key words of“privacy right and defense for illegal acts”,while many articles could be found with the key words of“privacy right and defenses”.
- ④There are still controversies about whether defense for illegal acts are constitutive requirements of tort liabilities,this article believes that it depends on the understanding of the constitutive requirements of tort liabilities,and if we took the constitutive requirements of tort liabilities as the positive elements of tort liabilities,then defense for illegal acts certainly do not belong to the constitutional requirements.But in practice,the existence of the positive elements of tort liabilities has no final significance to the legal effect of the decisions,and the establishment of the tort(positive constitutive elements)and non-existence of defense for illegal acts constitute the tort liabilities together.
- ⑤WANG ZEJIAN,LAW OF THE INFRINGEMENT ACTIONS,at 51(Beijing University Press,2009).
- ⑥Although it seems to be demonstration that not saying the results,the common view of German still adopts the theory of not saying the result.See WANG ZEJIAN,supra note 5,218-220.
- ⑦MAXIMILIAN FUCHS,LAW OF THE INFRINGEMENT ACTIONS,at 85(Qi Xiaokun trans.,The Law Press,2009).
- ⑧Jinan Lixia District People’s Court(1999),Li Initial Civil Court Final Judgment No.276.
- ⑨Xi’an Beilin District People’s Court(1999),Bei Initial Civil Court Judgment No.1676;Xi’an Intermediate People’s Court(2000),Xi Second Civil Court Final Judgment No.0204;Xi’an Intermediate People’s Court(2000),Xi Zai Civil Court Final Judgment No.80.
- The right of privacy was protected by the reputation right in the law of China when this case happened,there is no clear regulation of the privacy right,so many cases of infringement of the privacy right was judged through the reputation right.
- Florida Star v.B.J.F,491 U.S.524(1989).
- Beijing Chaoyang District People’s Court,(2008)Chao Initial Civil Court Judgment No.29277;(2008)Chao Initial Civil Court Judgment No.29276;and(2008)Chao Initial Civil Court Judgment.No.10930.
- (2005)Gu Civil Court Final Judgment No.366:Selected Cases of the People’s Court,4 volume(58volume total),at 103-107(The Supreme People’s Court China Application Legal Research Institution compiles,The People’s Court Press,2007).
- WANG ZEJIAN,PERSONAL RIGHT LAW,at 439(Self Publication,2002).
- Zhejiang Province Jinhua Intermediate People’s Court,(1999)Jin Civil Court Final Judgment.No.524 ,National Judges College and Law School of Renmin University of China,CHINA KEY CASES SUMMARY 2000 CIVIL CASES JUDGEMENTS(The People’s Court Press and Renmin University Press).
- In our juridical practice,there is a counter-example:“Wang Dongxia case”.In this case the court ruled that the plaintiff Wang’s behavior of crossing out the clause which authorized the hospital using her cosmetic surgery pictures freely meant Wang did not authorize the hospital using her cosmetic surgery pictures freely.Therefore the conduct that the hospital provided Wang’s cosmetic surgery pictures to journalists without Wang’s permission is a kind of behavior of publishing Wang’s privacy without authorization.This case can prove the other side that using other’s privacy needs personal commitment.Personal commitment can also be a justifiable cause to privacy right infringement.(2010)Guangdong Intermediate People’s Court Final Judgment No.3132.
- WANG ZEJIAN,TORT LAW,at 227(Peking University Press,2009).
- Tokyo District Court in December 20,the Sixty-two Year of the Showa Era,at 22,Case Times,No.1258;Tokyo High Court in September 5 of the First Year of the Heisei Era,at 37,Case Times,No.1323;Supreme Court of Japan in February 8,Six Year of the Heisei Era,at 149,Civil Precedent of the Supreme Court of Japan,No.2 of Volume 48.
- As to problem of the family privacy infringement involved here,it will be discussed in the sixth section of this paper.Based on the specificity of family privacy,if Li’s family did not object Li’s commitment expressly,the court could presume that his family had agreed impliedly.
- Guangdong Province Guangdong Intermediate People’s Court,(2008)Yue First Civil Court No.598Civil Judgment;(2008)Guangdong Intermediate People’s Court First Civil Court Final Judgment No.3871.
- The author does not think the idea of voluntary public figure is accurate.The issue involves the protection of public figure’s privacy right.This is a complicated problem and should be discussed by witting another paper.
- Sapporo District Court in December 8,Fifty-seven Year of the Showa Era,at 103,Case Times,No.1080.
- Yunnan Province Kunming Intermediate People’s Court,(2002)Kun Third Civil Court Final Judgment No.535,National Judges College and Law School of Renmin University of China,CHINA KEY CASES SUMMARY 2003 CIVIL CASES JUDGEMENTS(The People’s Court Press and China Renmin University Press)
- Sidis v.F-R Publishing Corp.,113 F.2d 806(1940).
- In“Sidis case”,American Supreme Court verdict seems showing an opinion that someone once is a public figure and he will be a public figure forever.As to the person who once was a public figure,the public has a justification to pay attention to his afterwards development.the public right to know and freedom of expression based on this justification is superior than personal privacy.Even though the American court emphasizes that freedom of expression and privacy right are equal in respect of right-grade in law protection.In specific case,it should be based on weighing interests to decide protect which one.However from the court’s decision,we can see it seems that America pays more attention to protect freedom of expression.
- Mclvin v.Read,112 Cal.285,287,91(1931).
- WANG ZEJIAN,supra note 14,270-271.
