The right to personality is a separate compilation of the right to reside in the law for the first time
-one of the new changes brought by the civil code
On May 28th, the Third Session of the 13th National People's Congress voted and passed the "Civil Code of the People's Republic of China", marking my country's official entry into the "civil code era." The newly compiled Civil Code consists of 7 chapters, which in turn are the General Provisions, Property Rights, Contracts, Personality Rights, Marriage and Family, Inheritance, Tort Liability and Supplementary Provisions, with a total of 1260 articles. The law of the Ministry shall come into force on January 1, 2021. In this magazine, specially invited judges interpret the highlights and new changes in the Civil Code in four stages.
Personality rights: Legislation in response to the development of new technologies
Chen Changyi
Highlight 1
A new behavior ban is added to block online violations of personality rights
The independent compilation of the personality rights of the Civil Code highlights the people-oriented legislative purpose of our country. Nowadays, new technologies in the new era, such as network technology, data technology and biotechnology, have been unprecedentedly developed in China, profoundly changing everyone's daily work and life. The relevant provisions in this series respond to the legislative development of these new technologies. Highlights the distinctive era character of the Civil Code.
Article 100 of China's Civil Procedure Law establishes a unified civil conduct preservation system, which is generally applicable to the protection of intellectual property rights such as patents, trademarks, copyrights and unfair competition, and the protection of personal safety in marriage and family disputes. The former is called "Intellectual Property Litigation Prohibition", the latter is called "Personal Protection Order".
All along, in the field of protection of personality rights, there is less adoption of the behavior preservation system, and no explicit provisions are made in the personality rights law. Therefore, in judicial practice, the analogy of the relevant judicial interpretation of the prohibition of intellectual property litigation is generally applied. The newly promulgated Article 997 of the Civil Code clearly stipulates the “Prohibition of Protection of Personality Rights” system with the nature of procedural law in the compilation of personality rights as the substantive law, and the intellectual property protection and family affairs are formally formed in the civil action prohibition system. Protection and personality protection The "three-troika" rights protection system that goes hand in hand complements the shortcomings of the protection of the ban on personality rights.
In practice, the injunctions made by the protection of personality rights are mainly applicable to the defamation and insults of online communication, illegal transmission of privacy and personal information, and the unauthorized use of portraits and names and names. This is closely related to the widespread and rapid spread of mobile Internet. If it cannot be blocked quickly, it will cause serious damage to the parties, and the system of protection of personality rights prohibits the system to provide a blocking mechanism.
For example, in the first case involving a ban on online reputation protection in Beijing, a media reported on an overseas purchasing company selling so-called counterfeit goods, but could not provide corresponding evidence, and the company was able to provide preliminary evidence that it had formal channels for selling goods , There is a greater possibility of winning. If the report is allowed to spread widely in the society, it will cause damage to the company’s business reputation, so the court quickly made an injunction based on the company’s application reasons and preliminary evidence, provided the corresponding property guarantee, and blocked the infringement report. Further spread on the Internet.
Of course, the protection of personality rights prohibition is a breakthrough in the due process of law to balance the interests of the victim with the infringer and the public, and is a manifestation of judicial intervention in advance. The court's attitude to make the injunction for the protection of personality rights is also very cautious. This requires a strict judicial review of its applicable conditions and preliminary evidence, including both the formal examination of the conditions for starting the procedure and the preliminary substantive examination of whether there is "proof of evidence".
Highlight 2
To increase the "correction instrument" for the use of information technology to infringe portrait rights
In the current era of eyeball economy in which “mobile phones rely on cameras and original pictures rely on Mito”, the essential elements of the mobile internet era such as street photography, Mito, Moments, Weibo, and short videos have made beauty and beauty a reality. The unchanging theme with illusion, of course, also makes the portrait rights and portrait copyright cases become the "net red" cases in the current judicial practice.
Article 1019 of the Civil Code clearly stipulates the negative power of portrait rights. Among them, the provision that “the use of information technology means to forge and infringe on the portrait rights of others” must not be included. Social Reality.
It is true that the emergence of information technology, especially deep forgery technology and AI face-changing technology, can be used in scene applications such as makeup testing, dressing, game character replacement, and video character replacement, which greatly facilitates the lives of the people. However, when P pictures, Meitu or even forged pictures become commonplace, some people will illegally use information technology to deeply forge portraits of others, and on this basis, form highly realistic and difficult to identify pictures and videos for advertising, and even forge others. Portraits are used for insulting and defamatory use through cutouts and face changes. Not long ago, some media reported that in a case where a company forged the image of Wu Yifan's endorsement was sentenced to high infringement compensation, although the face replacement method was not used, the company used information technology to make Wu Yifan's portrait into an image endorsement. Online and offline advertising has seriously damaged Wu Yifan's portrait rights.
In addition, in judicial practice, some online game companies use information technology to animeize and portray their portraits without the consent of acting stars, and use the star’s traffic appeal to illegally seek huge profits. The star can obtain corresponding economic compensation through the protection of portrait rights. Therefore, it is of positive significance to prohibit and prevent the infringement of portrait rights by the abuse of information technology through legislative means.
Highlight 3
There is a new type of sound
Personality rights "identity card"
The second paragraph of Article 1023 of the Civil Code stipulates that the protection of the voices of natural persons is governed by the application of the protection of portrait rights, which is a highlight of the compilation of personality rights in this Civil Code. This legislation actually recognizes the voice as an independent new personality right, but only adopts the protection model referring to portrait rights at the technical level of rights protection.
Voices, like portraits, have personal attributes. Voices are an important basis for identifying personal identities. The personal characteristics and personality characteristics of natural persons are marked to prevent confusion, abuse, misuse, and improper use of personalities and damage to the rights and interests of the voice subject. Even the right of reputation. At the same time, it also has property attributes when it is used commercially, especially celebrities or voices that have the characteristics of specific scene applications. The former voices of acting stars such as Guo Degang, Lin Zhiling, Li Jiaqi, or celebrities are used in navigation, article reading and other software. The latter, such as Li Lihong's voice characteristics of famous food films such as "China on the Tip of the Tongue" and "Flavour World", has strong scene application characteristics in the field of food film interpretation. They have corresponding economic value because of their voiceprint characteristics. Once the sound word fragments are edited and reorganized and used in the corresponding software or scenes, they may cause damage to the personal rights and even property rights of the sound subject.
Before the promulgation of the Civil Code, there is considerable controversy over whether the voice can become a right of personality and whether it needs to be protected separately. Although in the academic field of our country, it was usually advocated to use the voice rights as a reference to the protection of portrait rights, there is no explicit provision that in judicial practice, cases involving voice rights are usually closed by mediation, and the right to voice is not established through judicial judgment The legislation finally adopted the mainstream opinions of the academic community.
Of course, regarding the protection of the rights of portraits and voices, the question of whether to infringe the external images and sounds of celebrities encountered in judicial practice is controversial. However, it is generally believed that others imitating celebrities is a popular extension of the celebrity effect. Without pursuing impersonation, misleading, confusion and other illegal purposes and behavior effects, it should not usually be easily recognized as infringement.
Highlight 4
The protection of personal private information is realized
The third paragraph of Article 1034 of the Civil Code clarifies how to use the provisions on privacy protection and personal information protection when infringing on private information in personal information. This is actually through legislation, which actively responds to the current practical needs of personal information protection, and also clarifies the relationship between privacy in traditional civil law and personal information protection in the Internet age.
At present, the use of high-tech methods such as long-distance shooting and drone tracking shooting to violate personal privacy and personal information is emerging in an endless stream, especially with the popularization of monitoring and collection equipment, wearable devices and other technical methods, making private information and sensitive personal information There is a high degree of overlap between protections. However, there is a certain difference between the two. The private information in the privacy right emphasizes the confidentiality and undisclosure of the natural person's information; while the private information in the personal information emphasizes the identity recognition attribute and the sensitive information attribute of the natural person information. Through privacy protection, it can also be protected through personal information.
The second paragraph of Article 1032 of the Civil Code clarifies the concept and scope of privacy for the first time in the legislation of our country. It actually specifies the right to peace of life under the right to privacy, as well as private space, private activities, and privacy Three areas of information. When private information in privacy and private information in personal information overlap, rules for prioritizing the application of privacy are established. Only when there is no provision for privacy, the provisions for the protection of personal information apply.
At present, since there are only privacy disputes and no personal information protection disputes in my country’s case types, it is more straightforward and convenient to proceed with litigation on privacy disputes for the protection of private information in victims’ personal information. The Supreme People's Court is currently drafting a judicial interpretation on the protection of personal information. In the future, it will be able to more effectively guide judicial practice to fully protect personal information. (Author: Haidian District People's Court of Beijing)
Property rights: better protection of personal property rights
Tian Ye
Under the general rules of the Civil Code, the property rights are in the first place, and the important position can be seen. From setting up homes and neighbourhoods of properties to belongings of large and small objects and ownership of various land types, you can find corresponding regulations. The object of property rights protection and adjustment is "civil relations arising from the ownership and utilization of objects", which is generally speaking our property interests. The main part of the real right edition follows most of the content of the original real right law, and on the basis of it, it is amended and added some provisions based on practical problems.
Change one: the right to live debut
No matter who it is, living without a place or wandering without influence will affect happiness. This time, the Civil Code has created a brand new real right-the right to live. Literally, the right to reside is the right of residents to live in a specific house. The Civil Rights Code of Civil Code interprets it as the right of usable real estate to be occupied and used in other people's houses to meet the needs of living and living. The purpose of the addition of residency rights is to highlight the residential attributes of the house, protect the residents, especially the elderly, and other vulnerable groups, and to protect the living rights of public rental housing with the provisions of the law on property rights.
The 14th chapter, Articles 366 to 371 of the Property Rights Section, includes a new section on the right to reside, which specifies the requirements for the conclusion of the contract and the content of the rights: the holder of the right to reside shall have the right to enjoy possession, Use the usufructuary rights to meet the needs of living and living. To establish the right of residence, the parties shall conclude a right of residence contract in writing. It generally includes the following provisions: the names of the parties and their residence; the location of the dwelling; the conditions and requirements of residence; the duration of residency; and the method of dispute resolution. The right of residence is established free of charge, unless the parties agree otherwise. If a residence right is established, it shall apply to the registration agency for registration of the residence right. The right of residence is established at the time of registration. The right to reside cannot be transferred or inherited.
On the one hand, the right of residence protects people who have special needs for the housing attributes of public rental housing residents and vulnerable groups, on the other hand, it restricts the sale and lease of houses to a certain extent. For the registered right-of-stay person, it may have a higher authority than the actual possession and use of the residence by the subsequent house buyer. But this does not mean that the interests of home buyers cannot be protected. The property rights regulations stipulate that the right of residence shall be established by registration, that is to say, only the right of residence recorded by the registration authority shall be legally established. This requires buyers to carefully investigate house registration information when conducting a house transaction, not only including property information and mortgage registration information, but also paying attention to the establishment of residency rights.
Change 2: Owners’ rights strengthened
Compared with the 2007 Property Law, the Civil Code has made more changes and additions to the rights of owners, mainly reflected in the following points:
First, set a threshold for collective decision-making and adjust the number of participants in decision-making. Owners' committees are sometimes in vain in actual life and cannot achieve the purpose of protecting the rights and interests of owners. The reason is that some simple decision-making matters need to be met when the changes are too high, and it is difficult for owners to reach an agreement. In response to this situation, the property code of the Civil Code has readjusted the content and number of people in the collective decision-making matters of the owners. The original property rights law stipulates on the matters jointly decided by the owners and the number of participants in Article 76. "The following matters are jointly decided by the owners: (1) Formulate and modify the rules of procedure for the owners’ conference; (2) Formulate and modify the management of the building and its ancillary facilities Statute; (3) Election of owner committee or replacement of owner committee; (4) Election and dismissal of property service enterprises or other managers; (5) Raise and use maintenance funds for buildings and their auxiliary facilities; (6) Reconstruction and reconstruction Buildings and their ancillary facilities; (7) Other major matters concerning the rights of sharing and joint management. It is decided that the matters specified in items 5 and 6 of the preceding paragraph shall account for more than two-thirds of the total area of the building through the exclusive part Owners who account for more than two-thirds of the total number of people agree. Decisions on other matters in the preceding paragraph shall be approved by owners whose proprietary parts account for more than half of the total building area and more than half of the total number of people."
The relevant content of the Civil Code of the Civil Code is stipulated in Article 278: "The following matters shall be jointly decided by the owners: (1) formulating and revising the rules of procedure of the owners’ assembly; (2) formulating and revising the management regulations; (3) electing the owners’ committee or replacing Owners committee; (4) Select and dismiss property service enterprises or other managers; (5) Use maintenance funds for buildings and their auxiliary facilities; (6) Raise maintenance funds for buildings and their auxiliary facilities; (7) Reconstruction Or rebuilding the building and its ancillary facilities; (8) changing the purpose of the common part or using the common part to engage in business activities; (9) other major matters related to the rights of sharing and joint management. The owner shall jointly decide on matters that shall be owned by the exclusive part of the area Owners who account for more than two-thirds of the owners and those who account for more than two-thirds of the people participate in the voting. Decisions on the matters stipulated in items 6 to 8 of the preceding paragraph shall be subject to voting for more than three-quarters of the exclusive part of the area Owners and more than three-fourths of the votes of the owners agree. The decision on other matters in the preceding paragraph shall be approved by the owners who participated in the voting of more than half of the exclusive area and the majority of the votes."
In comparison, the compilation of property rights in the Civil Code has been greatly reduced, and the general requirements for the selection and dismissal of property service personnel have reduced the requirements for the number of decision-makers. For special matters, the number of decision-makers will be increased from "two-thirds" to "two-quarters"; "change the purpose of the common part or use the common part for business activities" has been added as a new decision-making matter ; Separate the "use and raise the maintenance funds of buildings and their auxiliary facilities", and correspond to the number of decision-makers required by different owners. These changes have not only refined the use of residential land, but also adjusted the minimum number of people in different decision-making matters to promote the exercise of owners' rights.
Second, clarify the ownership of part of the income, set points to stop disputes and protect the interests of owners. How should the revenue of video advertisements broadcast in the elevators in the community be distributed? Who should enjoy the revenue of the advertising panels hanging on the outer walls of the community... In the past, due to the lack of clear provisions in the law, judges needed to rely on the general burden of proof of "who claims and who gives evidence", and the property contract agreement between the two parties to make judgments. Article 282 of the Property Code of the Civil Code solves the above problems: "Construction units, property service companies, or other managers who use the common part of the owners' income, after deducting a reasonable cost, belong to the owners." After changing the uncertainty of the income of the public areas of the community, the conflict between the property company and the owners, the bonus income of the public areas such as the elevator advertising income of the community, the advertising income of the external walls or the parking space of the public area agreed upon is deducted from the property company. After the cost, the owner should enjoy it.
Third, fully guarantee the owner's right to know. In order to protect the owner’s right to know the property management and safeguard the owner’s right to litigation, the civil code added “property service companies or other managers should promptly respond to the owner’s inquiries about the property service situation” Enterprises or other managers and other owners who infringe their legitimate rights and interests have the right to request them to bear civil liabilities" and other provisions that are not covered by the original law of the original rights, clarify the rights and obligations of all parties through clear legal provisions, and lay a sufficient foundation for the effective exercise of rights .
Change 3: Land use rights have their own "long"
Reasonable setting and utilization of land rights structure is more conducive to realizing the people's livelihood and prosperity. Taking the original property rights law as a blueprint, the land contracting management rights and construction land use rights in the property rights compilation of the Civil Code have noticeable new highlights.
First, let go of restrictions on the circulation of management rights. Today, the phenomenon of abandoned farming in rural areas is not uncommon. For this reason, the property code of the Civil Code corresponds to the rural land contracting law, separating the land management right from the land contracting management right, and further liberalizing the circulation of management rights. Added “The land contract management right owner can independently decide to transfer the land management right to others by lease, shareholding or other methods according to law”. The land management right owner has the right to occupy rural land within the time limit stipulated in the contract, and independently develop agricultural production operations and Make a profit." It also changed the restrictions on the circulation of land management rights. From the original property rights law, “contracting rural land such as wasteland through tendering, auction, and public consultation, etc., in accordance with the Law on Rural Land Contracting Law and other relevant regulations of the State Council, its land contracting management right can be transferred. , Shareholding, mortgage or transfer in other ways” is changed to article 342 of the Civil Code of the Civil Code “contracting rural land by means of bidding, auction, public consultation, etc., and obtaining the certificate of ownership after registration according to law, may take lease or shareholding according to law , Mortgage or other methods of transferring land management rights."
Second, improve the house renewal regulations. The term of land use right for residential construction is 70 years. What should I do after the expiration? The issue of house renewal has always been a hot topic of concern to the masses. Regarding the renewal of the right to use residential construction land, the original property rights law stated that "the period of use of residential construction land expires and it is automatically renewed." . The Civil Rights Code of the Civil Code supplements the provisions on this basis: "Payment or reduction of renewal fees shall be handled in accordance with the provisions of laws and administrative regulations", that is, the renewal of payment shall be the principle, and fees may be applied for reduction or exemption as supplements. Guidelines. What can be determined from the provision of property rights is that the renewal must fulfil the legal procedures.
(Author: Shijingshan People's Court of Beijing)