Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law The ceremony of civil The 14 of November 24,2000: Times call a with Since founding country for tens of years, establish a ceremony of civil law, throughout is the scholar of civil law of our country Zi Zi so as highest goal. The established work of the ceremony of civil law have some of begin , but it is still ” 1000 shouts 10000 calls out do not come out ” to go through complication. What make one pleased is that since the forteen big of party, suggest that since establishing the goal of system of socialist market economy, the ceremony established condition of civil law has ripened at last gradually. First, because of the goal of the economic restructuring of our country, had been been determined as to establish socialist market economy, this makes be taking adjustment trade relation and protective main rights and interests as the civil law of purpose, it sticks out increasingly as role and the position of market economic basic law. The conclusion of ” public ownership realizes form may also should variation ” of party that 15 big reports put forward , the meaning with more ideological emancipation, must promote market to be economic and prosperous strongly and develop , and then establish the socioeconomy foundation of the established ceremony of civil law. Run the country according to law secondly, at this late hour, based on the summary for thousands of ancient Chinese and foreign annual experience and lessons, establishment socialist country governed by law has become our country from top to bottom common recognition. Legal consciousness and the legal quality of compatriots also have got the raising of considerable degree. For civil law, people do not already equate civil law simplely in marriage law, or will the function of civil law is confined only in the aspect of the right of protecting citizen. Legal circle personage has considered generally: Civil law should be the basic France of adjustment market economy, Chinese step is the completeness of civil law into the only way of the society of rule by law and perfect. This is that the establishment of the ceremony of civil law has offered unprecedented good political, ideological environment. Again, since reforming and opening up, the independence of individual strengthens gradually, as competition take place , personal autonomous, responsibility conceited consciousness is also strengthening constantly. The space that private God treats has been also opened up constantly , and strengthens and enlarges gradually. People begin to seek rationally the biggest dominator of self interests, that becomes self destiny under the prerequisite that does not harm the national, collective interests of other person , so are that the establishment of the ceremony of civil law has offered the social cultural foundation that becomes mature day by day. Besides, in last few years, the scholar of civil law when civil law studies field to devote all attention to study, having gotten plentiful accomplishment in the aspect of the research of establishment and perfect as well as thing right theory of legal principle in tort behavior theory of legal principle and the research of personality right theoretical establishment and perfect theory of contract law have gotten important theoretical breakthrough , so have offered essential academic condition with industrious labor and the wisdom of the scholar of civil law, for the establishment of the ceremony of civil law. Finally, in last few years, the legislature of our country has promulgated a series of important civil laws such as ” the consumer’s protection of rights and interests Fa “, ” maritime law “, ” bill law “, ” company law “, ” safe law ” and ” assure law ” one after another in civil legislative aspect, the State Council has also promulgated in succession a series of administrative regulations that is concerned with civil content. It is especially since 1994 , has begun the established work of the unified contract law that attracts worldwide attention under the management of the working committee of the Standing Committee of the National People’s Congress of legal system, these mark that the civil legislation of our country has entered a new historical period, the basic legal rule of our country concerning market economy been perfecting gradually , at the same time also makes necessary legislative preparation for the establishment of the ceremony of civil law , makes us have accumulated necessary legislative experience. When the condition of the established ceremony of civil law already basic maturation, its necessariness also long ago for people ear cooked can detailed condition takes off , we not Fang go on such closely question: Will we establish a what ceremony of civil law? This is that a benevolent person sees the problem that benevolent sage sees wisdom undoubtedly. Our reply is: Establish a own ceremony of Chinese nation of civil law. Civil law, barrier Hu the daily use of people is all right frequently. The ceremony of civil law is reflection and the summary of a country life style , represents the cultural altitude of a nation , has displayed spiritual civilization and the material civilization of a country from a side. We will be pawned by the civil law established , have faithfulness in our life and experience only, having only have contained wisdom and the unique annotation of us for civil law, will just become one have the ceremony of civil law of long vitality, and when the forest of world civil law possesses position, win the high attention of common people. Establish a own ceremony of Chinese nation of civil law, the following is most important. First, it is legislative and spiritual to determine. Legislative spirit is the spiritual prop of the whole ceremony of civil law , is to carry out the first point of law explanation , is to worth judgment under various cases to deny with the prerequisite that goes on , barrier Hu the trend of the whole ceremony of civil law. So belong to the established ceremony of civil law prior needs give the problem of notice. See from world scope, the legislative spirit of the ceremony of civil law not outside Hu: ” guard , unify and update “. Only countries it stresses. The establishment of the ceremony of civil law of our country, exactly when mentioning last historical agenda, worths the very good opportunity that reforming and opening up spreads out completely. The front of Chinese nation faces is not ongoing, it is to retreat; It is not progressive, is the major history of laging behind opportunity and challenge. The legislative spirit of our ceremony of civil law must agree with with this kind of spirit of the times, when considering both ” guard , unification “, stick out to update , it is so to have only, side can start new era of Chinese civil law. Secondly, it is the choice of legislative style. The legislative style of the ceremony of civil law, it is two to distinguish approximately: Firstly, again weigh law ladder type , pick for the French country and that influences by it for Roman type; Secondly, again claim that Pan De Ke swallows type , is German for virtue will type and its follower picks. In which the most person road is the latter. The biggest characteristic of this kind style is to set up rule and the common system of the assigned civil law and of general rule , has creditor’s rights, thing right, relative and inheritance additionally. Whole, virtue will legislative style has one side of its scientificness and reasonability certainly , but is far and not perfectly satisfactory. First, we think , the ceremony of civil law wants system to melt , must want to have general rule, so make every system of civil law have the content of generality have embodied in general rule, may also realize legislative succinct purpose. Especially picture legal behavior system, with the rule of its high abstractness, it is blank as adjusting to may fill the laws such as contract law. But what deserve to be noticed since is that come out from” the German ceremony of civil law”, continent law department a lot of national ceremonies of civil law when the part of general rule is very insufficient for the attention of personality right law, give person a kind of impression of ” value property, light personality “. We think that right is personality with property right relative should another kind of right, in the of general rule, should be on pretty important position. Protect personality right , is also to defend citizen and the basic human rights of legal person , realize the important composition part of its independent personality , suggest to aggravate the stipulation of personality right part in the ceremony of civil law of general rule of our country. Secondly, for creditor’s rights , we think that tort behavior law should separate from debt law system , so becomes one of the independence in the system of civil law. From law, occur the angle of studying to see , tort behavior law ownership debt law is not perfectly justified, the United States and Britain that causes because of specific cultural and legal factor role law department the independent pattern of tort behavior law, it is with more reasonability. Tort behavior law should be to found the composition part of the new system of civil law of our country independently from debt law. This kind of independence does not deny rule and the concept of debt , but makes it more reasonable and clear, and then normalize with other laws to form science together , accord with the system of civil law of Chinese national conditions. Is final, is the ceremony of civil law get direction problem then. America limits to in very long historical period, because of national conditions, the development of legal culture since become one body, enclose relatively. Late alter system to Qing Mo, get outside influence. It can be found out that this drafts by Japanese scholar since Qing Mo Min restrains the major content department of draft. To the Republic of America, repairing ceremony enter first floor more. Its case as old Chinese civil law studies Mr of domestic Meizhongxie to say: Current ” civil law picks the 6 or 7 of German legislative regular person 10, the 3 or 4 of Swiss legislative regular 10, law day the established practice of Soviet Union, also taste Xie 1 or 2. ” after new America sets up , situation makes Ran, the Soviet influence of civil law is very big. Since reforming and opening up, Chinese and outside intercourse becomes extensive day by day to go deep into , civil law gets direction then to change , British-U.S. France is countries , influences day especially American legal culture for our country deeply, it is obvious that this counts in contract law, tort behavior France and assurance France field. Thus it can be seen, the civil law of our country for abroad advanced accomplishment receive then, no matter continent law department and British-U.S. law department are still others law department, are taking in everything always, so as is that I use. But what should pay attention is that scan widely world cannot or is short of , it is basic to stand on domestic even more. Chinese self, in thousands of years, follows the legal factor that comes down and it when is modern and various to warp , is we unique should not overlook important homeland resource. For this, there should be enough attention. ” week though old Bang, its life reform. Since ” reforming and opening up, Chinese step into one in history the most important development stage, Chinese civil law is faced with unprecedented opportunity and challenge, let our joint efforts, create beautiful tomorrow of Chinese civil law together. 优文网络
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law “general provisions of the civil law” promulgation 1′ >Personality right some problem Wang It is built-in that personality right denotes civil main place , with the independence that defends main part personality essential life Health, personal dignity, personal freedom as well as the various rights such as full name, portrait, reputation and privacy. Personality right is the major form of personal right, and personal right and property right form other all civil rights and the two kinds of basic right in civil law or are contained in this two kinds of right, or is from the outcome of this two kinds of right combination( as intellectual property and right of inheritance etc.). Thus it can be seen, personality right is the basic right in civil law. Personality right is taking the independence of personality as prerequisite , and with independent personality deserved personality interests is object, so, personality right is decided by the personality as main qualification. On the one hand, once individual does not be right object, the main part that becomes legal relation does not be the object of identity and family right control , but is the individual who has independence personality , personality right has the soil of growth. On the other hand, equality and the independence of personality rely on , is for the respect of personality right and protection, individual does not enjoy independent personality right, especially life, Health and the rights such as freedom, is impossible to realize the independent and will freedom of personality. Therefore the independence of personality need to again confirm and protect personality right further. However, the initial confirmation of civil law of western society personality equality is the outcome of trade and possession property requirement, Cheng point out as Su Jun Xiong: Personality equality is echoed with the extensive expansion of contract. ” the position that individual enjoys the main part of right ability , namely expression can enjoy property right and the ability of concluding contract meaning. The right ability of changing speech is that individual enjoys property really and conclude contract, should exist theoretically legal prerequisite ” , from this, have decided 19The western scholar of civil law of century is regard as property right mostly personal personality prolong , view embodies personal will freedom and the value of personal dignity in the aspect of the control of individual for property , personality right is to possess and use freely for property , the right of profit and punishment, the respect for personality signifies , is for the respect of the property of other person. This is ” personality right is thing right in principle” that Hegel claims. The property of personality right melts have overlooked the intrinsic value of personality right. If purpose and the existent value of personality right only is for guarantee property right enjoy and realize , personality right changes actually is subordinate the property of property right, this will naturally cause the value of personality to fall onto the aftermath of enslaving for elephant of merchandise and money. In fact, though the one of existent purpose of personality right ensures property right exercise and is that property right offers prerequisite condition, but the existence of personality right has more important value, that is Hegel says make people ” become a person, and respecting other person character ” .Personality right why is make person the right of ” become a person “, is essential and legal for having rational mankind right? Because of personality right not is subordinate the right of property right, and it is the basic human rights of citizen , or says that is the major expression form of human rights.Human rights(Rights) is that everybody should enjoy , moment the right of cannot leave , as” the Chinese white book of human rights” point out , human rights are a ” great noun ” , ” lofty goal”, it is ” the ideal of the human pursuit of a long period”. However what Wei human rights, it is always various opinions , fails to eventuate in a common understanding. The angle of studying from civil law comes to see , human rights are not natural rights or morals right , are also not simple political right and political declaration , but are its important content with the personality right of citizen. The personal dignity that the law and constitution of our country confirm , personal freedom as well as life, body, full name, portrait, reputation, privacy and marriage autonomous etc. right are the personal basic human rights that place should enjoy in society. These rights are that person can exist as a person, subsist coordinatively with other person essential right, also is person joins self with society together occur the prerequisite of various contacts and associations with society. Individual not only when law goes up is also not enjoy personality right in fact , must lose the right of behaving and is the basic value of person, individual also has no qualification to enter society and exists as social member. So, human rights first embody , is the personality right system of personality interests and neglect civil law and socioeconomy condition is for the restriction of this system , is impossible to know the true content of human rights. Since countries law is not identical for way etc. and the scope of the protection of personality interests, therefore, also does not have the “natural rights” of so-called super class and super society. As personality right is the right of ” person is person place should have “, is with the safety of body and spiritual campaign and complete is object, and it is taking defending main freedom, dignity and safety as purpose, it is the independence that realizes and defends personality for protection and the confirmation of personality right , promotes perfect important means and the development of individual. Indeed, property right also has the content of the property right and function that shows personal personality, have also embodied freedom and the will of individual, but relative to personality right, the contacts of independent personality and property right are indirect, because for any individual, do not enjoy independent property right although can hinder its behavior freedom, but do not hinder individual to enjoy right ability and become legal and main. However, individual can not maintain the survival of person, as life right, free right and full name right etc. if not have basic personality right , ensures that person must hinder individual with the association of other person to become legal main part. Under this condition, individual even if enjoy property right, this kind of right also has no meaning. So, since from Roman law confirmation” the right of abstract personality”, till this century personality right system form , personality interests has gotten the protection of criminal law and administrative law and could not set up under the ample protection of civil law, this though not whether accept personality interests is also the interests of legal protection, but after all, do not have the personality right system of civil law. Therefore from this meaning, say that civil main system is always to owe the complete actually. We think that personality right is basic as existing to worth , are realization and maintenance main independent personality, describe personality right and the relation of personality( main qualification) simplely, personality decision personality right, and personality right again embodies personal personality , and is taking realizing personality as purpose. However, realize the meaning of personality, not only will maintain the life of individual store to extend , in order to make individual also have more rich, important intension as main existence. On the one hand, the value and dignity that realizes personality and asks to respect individual promote the release of personal independence personality , realize the freedom of personal necessity. The person that this says for being horse and Si-Luo the high-grade needs had when the expression on law. Cheng the modern law claimed as Su Jun Xiong ” Cheng should the personality through the abstractness of every person( Personlichkeit), and stressing on further have the poor specific mankind of rich, strong weak, virtuous foolish etc. difference( mensch) , ensure its viability, developing it have main part , have society just store to mind justice. ” civil law passes , is for the protection of general personality right and specific personality right , confirm main part to, for its personality interests, enjoy the strength that a kind of exclusion other person interferes and hurts illegally, at the same time, also giving individual to enjoy a kind of illegal behavior with ” everything despises person , despise person , make one not to be person as it ” make the weapon of struggle. Civil law is for the protection of personal freedom and personal dignity , have confirmed that the person of individual that worths together and can encourage individual to control self with own will moves about. Is engaged in every rightful social association autonomously. Civil law the protection for the personality interestses such as full name, portrait, reputation and privacy, it is not only helpful to protect the safety of main personal special identification and personal life, and for defending cultivation and the dignity of individual, personal independence also has important meaning. The requirement of civil law when hurt personality right to deliver the spiritual infringement of aggrieved party , injure person should undertake the liability to pay compensation of spiritual infringement, this is also helpful to defend freedom and the safety of personal spiritual campaign. So, the protection for personality right is the basic channel that realizes personality. On the other hand, realize personality , need to cultivate and realize the personality consciousness of personal independence, shine constantly main vigour. Independent main consciousness is the behavior of individual for acting on one’s own in legal scope , have the courage to undertake the consciousness of risk and conceited responsibility. The feudal society of our country of thousands of years adopts ” Min punishment does not divide ” , is taking punishment as this legal general layout , has contained dynamic role and the independence of individual, especially because of the absolute dominance of the paramount and feudal system of head of family of feudal monarch, it is twisted and has trampled upon the value of individual, cause individual to only just have its existent value in being subordinate to the relation of other person , and have no independent personality consciousness. The confirmation of civil law of our country independent personality right, ask citizen time to notice value and the position of self , respect and defend secret, value and unique life style and the dignity of other person , ask citizen to realize the value of self fully through the campaign of own independence, this visits under the promise that is helpful to promote people in law to seek , selects to most accord with self natural instinct and Yi Qu life style, experience the meaning of life fully exist with self, make people get rid of the economic foundation of small farmer on arising stick to old ways , do not think to struggle , but ask for smooth and steadily idea and ” vulgar relation studies ” and person the restraint depended on , strengthen personality independent idea , develop bold initiative , have the courage to explore and have the courage to create in social life. Once whole society forms independent personality consciousness generally, must establish good foundation for the development of market economy. Still see , respect personal freedom and the personal dignity of other person since the personality right system requirement of civil law is personal, government institution when exercise its administrative right and newspaper-man when exercise its right and writer of freedom of speech is at the time of the right that enjoys its creation works , should respect the personality right of individual fully , is so, personality right system has formed a kind of right system the structure of weighing apparatus, to develop coordinative individual and the harmonious relation between individual between interests, the conflicts of social interests and and personal interests have offered condition. Especially the cultivation for right consciousness and the consciousness of human rights, will play the part of important role. Is current, cultivation right consciousness is just establishment socialist democracy , the society that forms harmony to stabilize order place is necessary, right consciousness disappear thoroughly, will inevitably make brutality consciousness slip into. Decade disaster duration, the time of savage act in whole country, butcher bullet crest appearance celebrate , it is not the result that right consciousness is ruined not. In a word, civil law takes huge role for protection and the confirmation of personality right in the aspect of realizing and defending independent personality right , only says from this meaning that personality right system is a extremely important system in civil law. Should see that the civil law of our country is not the outcome of individualism for the protection of personality right , but is to defend the needs of social interests, legal value is multivariate, between social order and personal right between , social interests and personal interests will always form various frictions, and law needs balanced various interests conflicts. So, the powers and functions and scope of personality right that individual enjoys , the way of exercising etc. should get legal restriction , personal personality right should be coordinated with its social responsibility had unanimously, when individual exercises right, need to bear the light impairment from other person. In a word, will defend social order and the harmonious solidarity between person and person, personality right necessity is to get the right of restriction. Here, is concerned with the protective and rightful problem of the protective relation of the supervisor of public opinion of personality right. The supervisor of public opinion denotes journalist to use propagation medium with other citizens to give various opinions or speeches, for the right that political, economic and cultural life etc. criticize , implement supervises of society. The supervisor of public opinion is the outcome of modern society with the protection of personality right , is also the sign of social civilization. They are to establish the democratic indispensable system with legal system and the steady and harmonious place that maintains modern society of society from foundation. If law notices to protect personality right and have neglected the protection for the supervisor of public opinion only, so, though, personal personality and its dignity have gotten the respect of other person , but are this kind of and protective to be taking restricting the rightful supervisor of public opinion unnecessarily as cost , and will make the social loose that lacks a bold criticism and speaks out freely environmental. People can not have the aid of for the various ugly and illegal phenomenons that appear in social life in popular propagation tool to give bold disclosure and criticism, this will not only connive to hurt citizen right somewhat, include hurting the behavior of citizen personality right, and can make the personality right of individual fall onto a kind of extreme individualism that not coordinated with social interests and melt absolutely. However, protect personality right and rightful public opinion to supervise , should pay attention , have some conflicts and contradictions between the protection of this two rights, because the major object of news tort is the personality right of citizen, especially privacy right and the honorary right of citizen, so, law is different for news tort behavior sanction degree, go to direct influence for the different protection of freedom of the press and citizen personality right. On the one hand, law if the special protection of emphasizing for the personality right of citizen, must restrict some freedoms of journalist in being engaged in news campaign properly. Conversely, say that protect fully if law is given for the supervisor campaign of public opinion, must hurt the behavior of personality right for news especially light hurt the behavior of personality right to tolerate , law must restrict aggrieved party to put forward request. Since in news campaign, journalist exercises the right of the surveillant of public opinion , exposes and criticizes some illegal and bad phenomenons boldly, will always be concerned with for quilt the blame of critic, and since news move about , there are many process links , time brief, professional winner, is impossible to hold fact and opinion absolutely accurately , is also impossible to avoid fault completely. soIf will any unreal even is light unreal news are news tort handling, though, this can strengthen the protection for personality right, can but influence the supervisor of public opinion really is rightful to exercise.Personality right and the conflict of the newsvalue). Under this condition, law must select first protective law benefit. Refering to foreign experience, incline to carry out prior protection for freedom of the press mostly. For instance according to a American judgment of Supreme Court of 1964 years, in Publication when thing is concerned with the problem that the public pays attention to , the free value of freedom of speech and Publication will get protection more first than personal reputation. ( see NewYork ). A legal precedent in Britain in, judge Dai Pu Luo g( Diplock) has claimed’ >Times Co v.Suli-van,376U.S.254 ). A legal precedent in BritainLaw should though argue to be balanced in the aspect of the protection between freedom of speech and personal right, but should offer prior protection for the speech of the interests that is concerned with the public to pay attention to. We think that see from the actual condition of our country , should occur conflict between personality right and the right of the supervisor of public opinion, for the right of the supervisor of public opinion, implement protects first. Its reason lies in: On the one hand, America is striding forward to the society of rule by law, establishment is democratic, is essential with the completeness of legal system, reinforced endeavour to build a clean and honest government and the news supervisor mechanism of public opinion. The sun is best Antiseptic , only strengthens the supervisor of public opinion, then can better endeavour to build a clean and honest government , prevent various corruptions. To make masses of people participate in national management, supervisor government behavior and rectifier various social bad phenomenons through popular Media, news Media of our country should enjoy more ample freedom and right, when protection between personality right and public opinion supervisor, law should backward person accommodation. On the other hand, in actual life and the supervisor mechanism of public opinion are not enough to improve yet, the role of the supervisor of public opinion has not gotten ample performance yet. Masses of journalist exposes and criticizes various ugly, illegal phenomenons, will always meet various resistances and difficulties, under this condition, should encourage more the right that journalist exercises the supervisor of public opinion boldly , and should carry out special protection for rightful supervisor, because ” sentence if slandering too many, reporter and Media are punished easily, when so one of our supervisor of public opinion original not developed country, it has can imagine as a result. ” this kind of situation of the legislative purpose of having also deviated from the protection of personality right at all. In all 2[2] 銆€銆€Next 优文
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law Thing right Wang The legislative work of the thing right law of our country is extremely urgent , and takes place according to the thorough of theoretical research of urgent need of thing right legislation, when discussion is basically theoretical as thing right legislates , around the thing right legislation of our country, whether should accept the thing right behavior of Germany are theoretical, when academic circle existence intense argument. Is regard as thing right behavior theory in view of a lot of scholars the theoretical foundation of thing right system, [ 鈶?a ] the basic principle of or thing right law, [ 鈶?a ] therefore, for thing right behavior, theory is discussed , reply the thing right law of our country whether the problem of refer to this theory , it is very necessary. This text talks about some superficial views at this point.The thing right The concept of thing right behavior is most early that by Germany, scholar Sa-Wei-Ni puts forward in its a book of ” modern Roman law system ” of Publication of 1840 years. [ 鈶?a ] but actually, thing right behavior system already exists early in Roman law. On Roman law deliver ( traditio) requirement one side of involved party so as move to turn the meaning of 鎵€鏈?right , turn over thing in another side, then can move to turn have right. ” when classical law and good Shi-Ding-Ni-Fa-Zhong, the transfer for possession may be completed through some and accurate spiritual ways concealed , is nearly to suit through both sides to announce as have the transfer of right “. [ 鈶?a ] is other, Roman law goes up want type business( mancipatio) to also emphasize thing right to move to turn must adopt certain way, is wanting type business contract , must not additional condition, time limit or burden. These systems as theory of Sa-Wei-Ni thing right behavior form have produced major influence, Sa-Wei-Ni has also only founded thing right behavior theory on the foundation of summarizing and explaining the Roman degree of legal system , the thing right system of civil law of combining for German law and even the thing right law in continent law arising major influence. Actually, what is thing right behavior? Sa-Wei-Ni writes road in a book of ” modern Roman law system “: ” the contract on private law, with various different systems or forms, appearance is really miscellaneous. First, it is the contract of creditor’s rights set up based on the relation of debt , is thing right contract secondly , and it is extensively suitable to have. Delivering ( Tradition) have the feature of all contracts , is a genuine contract , include the reality of possession on the one hand to deliver , the bread of other places Kuo move to turn have right meaning expression. This thing right contract had been overlooked frequently, for instance when business contract, general person thinks of the contract of creditor’s rights only in, but forget Tradition also contain a and business contract complete separation, so as move to turn have right for the thing right contract of purpose “. [ 鈶?b ] this exposition of Sa-Wei-Ni has contained 3 important principles; It is first, the independence principle of thing right behavior. Because he thinks that delivering is the contract of a independence, it stands independently in the contract of creditor’s rights ” a genuine contract”, and business contract complete separation. Its and business contract reason behavior is not that same one is legal to concern. [ 鈶?b ] is second, deliver must embody the independence of involved party meaning expression, because of this independence meaning expression and reason behavior is unconcerned , have produced thing right behavior have no because of sexual theory. [ 鈶?b ] 3th, deliver must so as have right move to turn for purpose, the enforcement of thing right behavior aims at making thing right occur change. The above-mentioned thought of Sa-Wei-Ni has though contained thing right behavior important principle, but have not yet put forward the concept of thing right behavior clearly, later generations for thing right behavior limit , always, various opinions are seen from the exposition of the scholar of our country , have some kinds of following viewpoints by and large: It is first , limits thing right behavior from the purpose of thing right behavior. As history yet wide Mr thinks , ” thing right behavior Wei with thing right set , transfer, change or elimination is the legal behaviors of purpose. ” [ 鈶?b ] Mr Zheng Yu Bo thinks: “, , , though, the reason of thing right change is many, but the most important person Jue is legal behavior. This kind of legal behavior, with the change that directly occurs thing right is purpose, reason also weighs thing right behavior “. [ 鈶?b ] is second, from thing right behavior form angle to limit thing right behavior. If Mr Yaoruiguang thinks ,: ” thing right behavior, from thing right meaning expression, with registration or deliver , become want type behavior. [ 鈶?b ] thank when whole Mr thinks: ” thing right behavior department thing right change meaning expression, with registration , is written or deliver legal behavior “. [ 鈶?b ] Wang Ze lesson Mr also thinks: ” adopting narrow sense only regardless of us for thing right behavior say or broad sense says , restrain behavior in accordance with law and raw thing right changes , must have meaning expression and deliver ( movable property) or registration( real estate) 2 important documents, ask undoubtedly “. [ 鈶?b ] 3th is from independence and has no , limit thing right behavior because of sexual angle. As money Mr star thinks , thing right behavior denotes thing right change effectiveness occur, it is direct is taking registering or delivering as condition, it still has besides the contract of creditor’s rights in order to directly occur the thing right contract with thing right change of purpose( thing right behavior). [ 鈶?b ] Compare 3 kinds of above-mentioned viewpoint, I think that do not have no reason. But second kind viewpoint has embodied traditional thing right behavior theory relatively completely, especially thing right behavior theory of Sa-Wei-Ni. According to this viewpoint, traditional thing right behavior denotes to change with thing right, is purpose, must have meaning expression and deliver or register the behavior of 2 important documents. Its feature is: 1, thing right behavior is taking thing right change as purpose. That is said, it is not same to be taking establishing, changing or eliminating thing right relation as purpose, this and the behavior of creditor’s rights. The behavior of creditor’s rights is so as occur give to pay duty is purpose legal behavior, so, it is again called as burden behavior. And thing right behavior is in order to occur the behavior with thing right change of purpose, it is again called as punishment behavior. [ 鈶?b ] will occur thing right change because of thing right behavior, therefore behavior person should enjoy punishment right for the thing marked , ” burden behavior, not have punishment right with burden duty person for giving to pay the thing marked is necessary. [ 鈶?鈶?b ] 2, thing right behavior is taking delivering or registering as it to come into effect important document. Thing right behavior is , is taking thing right change as purpose, but simple thing right change suit the change that can’t occur thing right , must still rely on deliver or register behavior. Wang Ze lesson Mr Zeng is taking business as example, have pointed out the difference of thing right behavior and the behavior of creditor’s rights:Make reduction andBusiness鈹?make reduction and鈹?鈫?鈫?br>鈹?meaning expression鈹? public鈫?鈫?鈫?br>The behavior thingIn all 6[2] [3] [4] [5] [6] 銆€銆€Next 优文网络
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law It is civil and The newspaper As our country establishes socialist market economy, theory of system ripens gradually , has increasingly rich practice, as well as run the country according to law and establish socialist country governed by law run the country general plan determine , in coming years, when being civil and legislative , study research with civil law, the problem of some following aspects will arouse the attention of people.About theThe code that realizes civil law melts , turn over a new leaf since America sets up , have is countless scholar appeal and Qi wish, it is the new desire of Chinese few acting scholars of civil law. Now, the established working quilt of the ceremony of civil law is formal to have placed in the legislative agenda of the National People’s Congress. The establishment of the ceremony of civil law of our country will not be to prepare to establish the civil legal standard of single trip first with the way that one step goes to position , is then modified and replenished according to actual needs, carry out code on this foundation compile. Taking this as background, the system problem of the ceremony of civil law looks particularly important. Only in a reasonable system frame, then can establish the ceremony of civil law of a science, this need to study:It is first, the legislative style problem of the ceremony of civil law. The ceremony of civil law adopts people business to join one or people business the legislative style with upright minute, continent law is every country, have different practice with region. The establishment of the ceremony of civil law of our country should pick people business to join a legislation style, stipulate civil life in the ceremony of civil law with the together regular and common system concentration that entire market is suitable for , and will apply to the rule of local market or a few of markets , stipulate in each civil special law, with reflection market economic condition the combination of next civil law and commercial law. From the current civil legislation of our country, adopt people business to join as soon as legislate style , most typical case is ” the contract law of the People’s Republic of America”. This legislation carries out legal adjustment for civil contract, again for business matter contract carries out legal adjustment, have solved better the problem that people business joins the realization of a legislative style. The establishment of the future ceremony of civil law should insist this practice.It is second, tort behavior law whether the problem that need to separate from debt law. Tort behavior law ownership debt law is not perfectly justified, the United States and Britain that causes because of specific cultural and legal factor role law department the independent pattern of tort behavior law, the reasonability with more it. The particularity of debt of the inner defect of traditional debt law system, many shapes of tort responsibility form as well as tort compensation for damage, is tort behavior law independence the strong basis of debt law.It is 3th, the law of intellectual property whether should contain in the ceremony of civil law. It is the composition part of civil law that no doubt, the law of intellectual property belongs to , but this does not signify to must decide the regulation of intellectual property in the ceremony of civil law. The law of intellectual property contacts on the one hand with administration, is close, on the other hand technical to stipulate the more problems of how to is also still faced with after joining World Trade Organization in our country to conform with the WTO rules such as Trips. Is adjustment to maintain the ceremony of civil law civil relation basic law deserved stability, most stipulate the law of intellectual property well as single trip law.It is 4th, civil evidence law whether as the composition part of the ceremony of civil law. Civil evidence law is on the choice of legislative pattern , the best method is established single trip law. If can not legislate alone, may consider the composition part that is put in civil entity law and is pawned as civil law. Because civil evidence law says from nature that is the outcome of program law and entity law combination , but is put in civil program law , is difficult on the one hand on technology, on the other hand, send to hope modify law of civil procedure so as join the content of evidence law, it is yet unrealistic. Have the aid of the establishment of the ceremony of civil law , may guarantee that evidence law is enacted as soon as possible.Join the challenge andIt is that our country carries out the natural choice of socialist market economy by addition of WTO and necessity result, it will study research to civil law and the civil legislation of our country to bring opportunity , put forward challenge. Because when the birth of World Trade Organization the around member that asks to join WTO that forms must accept the wholesale agreement of economy and trade, have become world countries to develop the cooperation of economy and trade with ” compete game rule “, and become the key part of the international economic law system of law of trade. Our country will join WTO , must modify, abolish and replenish for the existing stipulation in civil legislation that is inconsistent with the rule of WTO somewhat. At the same time after, join WTO while facing , it is civil to concern more active prospect, we must accelerate the pace of the ceremony establishment of civil law , establish the basically legal rule of adjustment market economic relation as soon as possible in order to offer definite behavior rule for the behavior of trade involved party for being engaged in various trades , and ensure from system that market is economic and well to operate.The research of personalityAs a basic right in civil law, the existent basic value of personality right is realization and maintenance main independent personality. The personality right system of civil law passes , is for the protection of general personality right and specific personality right , confirm main part to, for its personality interests, enjoy the strength that a kind of exclusion other person interferes and hurts illegally, at the same time, also giving individual to enjoy a kind of illegal behavior with ” everything despises person , despise person, make one not to be person as it ” make the weapon of struggle. In which, the protection of privacy right has important discussion in contemporary society to worth. In message society, because of the appearance of computer network, the life style of people has occured some changes especially the life style that is concerned with private field , in the aspect of personal data protection and message network control aspect, need to establish special law to protect the privacy right of citizen. And for the free relation of privacy right and freedom of speech and news Publication, will also become the focal point of discussion, it will surpass the scope of civil law if it discusses meaning.The research ofSince the civil law of our country is established as pawning , on specific step, has adopted the strategy of ” go gradually “. ” the contract law of the People’s Republic of America” establishment and promulgation, have become the ceremony establishment of civil law first sound and preview. With this as opportunity, contract law and even the research of the law of creditor’s rights will deepen and extend further.First, it is some new systems in the general rule of contract law, if conclude a treaty on the contract and system of negligence liability the acting position right of contract creditor and the counterplea right system fulfilled , withdraw pin right system and responsibility Jing join system, remain in the research in-depth.Secondly, will notice E-business problem. The appearance of E-business, have promoted to trade way update , have promoted the development of market trade maximumly. On” the contract law of the People’s Republic of America”, though for E-business, problem is concerned with , but a lot of problems has not been solved , have hindered the development of network trade seriously. For example, the E-business problem and network service business of safety property( ISP) the responsibility problem in E-business, how contract law makes response, become contract law one of research big subject.3th implements along with the promulgation of contract law, for the research of typical trade legal adjustment, the research that contract law divides also begins to have gotten to study the attention of circle. People will know gradually that the minute of contract law is having independent meaning in the research of contract law. Because the minute of contract law will not only realize the self characteristic of various typical trades in the general principle of adjusting contract relation and the specific, still combination realistic economic life of general standard that the general rule of contract law establish , make is different from the various special stipulation of the general rule of contract law. So, the minute that makes contract law has become research and the especially regular discussion of the general rule of contract law, that will carry out independence.The tort behaviorComputer network will put forward new subject to tort behavior law. On net and the extensive application of computer network, tort grows increasingly, and the civil right of intruding is concerned with many types. Because of the very network characteristic, have not only caused tort fact to be accredited and difficult , is nearly impossible to even believe sometimes that tort main part and right are main, other, the characteristic of network also makes tort aftermath be hard to determine on certain degree. Therefore it is for the problem of the compensating expense of tort on net that determines to be also one to deserve to pay attention.The researchThe law of creditor’s rights is the mission that thing right law undertakes mainly mainly with the adjustment of civil law that adjustment property circulation relation belongs to and uses for mission for property. The research of thing right law includes mainly:First, thing right law need to first determine the system of thing right. The key problem of thing right law is the confirmation that solves thing right and protection problem, in order to implement thing right legal principle. Through the establishment of thing right law, should carry out arrangement for various thing rights , and will need the right of thing right law protection urgently , is determined as thing right as countryside contractual right of land etc.. Still solve the thing right law principle of how to use tradition to describe , build Gou collective and the right of our country had by country have right and it exercises system.It is second, establishment and perfect thing right is public to show , public letter system. It is public to show , public letter system trades for maintenance order, it is most important to protect trade safety. When public show system, the registration of how to will stress on mainly to perfect the thing right of real estate and a part of thing right of movable property system, to change registration, office does not unify and register the defect of the leak in process such as is more, make registering system offer true ample message for the involved party of trade.3th will establish a complete rule that solves thing right conflict. The focus of thing right is the thing right of real estate, the thing right of real estate is the thing right on land mainly , is some parts because of land on law by distinguishing points, every part may become the object of right, native land on the ground thing right is not unitary thing right type, and it is a group of thing right , is to exist in the thing right crowd on land , forms right crowd together with lease right etc.. They are the focuses of thing right regulation system, the thing right legislation of our country should deploy this group of right crowd, coordinate the effectiveness conflict between right.It is 4th , need to still discuss its related problem and the legislative choice of thing right change pattern. Core is our country should Fou pick to accept the independence of thing right behavior and have no because of sexual theory.Study visualBefore, those that studies studies the civil law of our country study with system mainly, many angle investigations of shortcoming for civil law and look closely at. Specific expression is being known for adjacent subject as the lack of research results of philosophy, sociology and economy , is more rare to refer to. Should emphasize the investigation for many angles of civil law in the future.In all 2[2] 銆€銆€Next …
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law Copyright: Is encouragement Beijing big The interests between a, genuine - - - - the copyright law that we understand the law of being to protect people for the thought of literature and artistic field and the expression of feelings, typical protective object is the outcome of author personal creation as novel, music and drawing etc.. The way for that same thought expresses with feelings is varied , nearly has infinite possibility, the creation of each person is a angle of iceberg only for the use of this kind of possibility , is besides already some creative expression , another person again free degree and the space of the creative expression that carries out independence are relatively greater. So long as having the creativity of the minimum limit of copyright law requirement, may get copyright law to protect , do not exist to copy with the certainty of the expression of other person. Therefore works have no minute of absolute value difference in degree, the world of copyright is the world of a many shapes( 1). Compare under, patented technology is usually in the most forward position of certain a specific technical field, though possible existent solving schema not a , but train of thought is very limited after all. Technical innovation need to go on on the already some foundation of patent accomplishment inevitably. - - - - resembles the appearance of works, software works and database along with new works type, as film works and recording record and popularizes in social production, service and life, the creation of works is already from the freely independent creative pattern of author single person gradually( 2) to carry out the pattern of collective creation by many creative persons that employer or trustee offers Gao Xin remuneration to change , from character creation, it is creative to investment to change. In works creation, the personality of author and the composition of character are gradually few, organize management many persons collective participation creation must economic investment composition is gradually many( 3). The partition of the limit between intellectual works and technical product can be more and more difficult. On works creative layer surface, the interests cake of genuine author is faced with quilt, is dangerous as investor shares. In - - - - traditional copyright law, encouragement creative object is the alone creative author of natural person mainly. And in the process of producing of film works, recording record elephant works, software works and database, the organization of together cooperative person for hundreds upon hundreds works , as well as advanced produce means and equipment look more and more important. Most cannot depart from film company, disc company, software company and database at all to make a huge sum of these company’s large scale enterprises make investment , need them urgently to undertake corresponding high risk , so, they also have got reasonability for the pursuit of a huge sum of profit, is basic. Just as copyright law is not to protect cameraman for the protection of film, , it is the same to protect the investor filmmaker, the protection for software is also not to protect software design people , but is the protective software company that organizes and makes investment for software production. Evidently, the tendency of new technical development will not though change copyright law have traditional feature, but already investing in huge economy to lead into go to the creation of works. Investment is protective and possible to become a more and more important responsibility of copyright law. The opinion of - - - - view investment interests protection is considered , enjoys the copyright of collective creative software “works” as the investor of employer according to copyright law , and is not not appropriate as what( 4). Scholar expresses that approves collective creative replacement personal independence creates , and in digital technical environment, single author goes on creative pattern whether will be still on leading position to put forward query( 5). He thinks that the “creation” of the literature and artistic field of a long period is major go on with the way of personal participation, so fuzzy a truth, writing is the outcome of collective cooperation basically. He still thinks that so far, the internet development situations of openness and interactiveness show that” computer space” have the creation under strong cooperative impulse in large quantities , is collective and creative to arise unprecedented prosperous situation. If in the copyright legislation of digital technical environment, relaxing to” create ” in concept, personal creative inhibition may so walk out of traditional copyright , accept collective creation in law by the narrow scope of the personal restriction of natural gift, make this truth have reappeared , so protect the cultural interests of larger scope( 6). - - - - the author thinks that though, above view has certain reason , but need to still accept the trial of time in the digital technical process of unceasing rising and development. In if future digital times, collective creative proportion exceeds personal creation , and can produce a new problem, how to distinguish collective creation uphold, make policy and express the person of own character in process , imagine easily, identification work will become very difficult undoubtedly( 7). Participate in works creation together especially as the 10000 persons on 1000 that spread in all parts of the world through internet, also the content of works because of the requirement of interactiveness and openness needs update constantly, identification work possible meeting is extremely difficult. The works that - - - - and investor create for collective enjoy the case of copyright appearance echo, technical product and the intellectual expression of the original of distinguishing points can be more and more difficult. How the limit between intellectual works and technical product divides , will become a outstanding problem. The Trips agreement of the one of accomplishment of GATT Uruguayan round negotiation sign , as well as the establishment of World Trade Organization gets the influence of American copyright field pragmatism , software works, database, writing works, music works and fine arts works etc. may be done business like rice and wheat on international trading market. Lai Er of German scholar( ThomasDreier) thinks that this kind of pragmatism has produced for the concept of author and works in author right tradition negative influence( 8). - - - - when this text may see , it is attempting to protect the desire of 鎵€鏈?software and the investors of multi-media and database using a Lao Yong Yi of copyright there is deep contradiction between the protective creative purpose of genuine author of traditional copyright law. When future figure times, copyright law encourages intellectual creation continuously or turns and protection is economic to make investment , this major issue will attract people to be more and more to think deeply. Computer software, though from the development of international copyright circle tendency comes to see , software can still get copyright protection as works very much in the future in a long time, but domestic and international more and more scholars have known this kind of protection i.e. a theoretical defect of copyright protection of software that cannot overcome , can not more and more satisfy very probably the tool that worths for most embodying software to carry out protective objective needs , so, expose more and more abuses and limitations. Is in the aspect of database , have a kind of more and more get the database of attention, though, it lacks enough original and can not get copyright to protect , but is welcomed by masses of user , have huge commercial application value, besides so its investment interests should also get copyright to protect the protection of special right or other methods. It is a very complex problem that multi-media copyright protects , as so Fou should be multi-media single row a kind of new works type, multi-media industry whether the crisis that can cause works classification tradition , domestic and international have no final conclusion yet. Developing multi-media industry, need to make right settlement easier as far as possible , this whether signify to must sacrifice the traditional reason on works classification that forms for a long time, it is also the problem of a worth-while discussion in-depth. The process in digital technical development in, aim at these problems, satisfactory answer when can produce , people are waiting and seeing. The copyright protection - - - - is in America , most software can get copyright to protect , gets the protective total quantity of software that quantity nearly equates in software( 9). American copyright law is low for the original requirement of software works( need to create independently only instead of plagiarizing the creativity of as well as minimum limit), so that in software case, the original judgment of software is seldom mentioned because of being not problem, concentrate as the attention of judge on the judgment of the ideological expression law and corresponding tort problem of two point. B of Sub_clause 102 of American copyright law expresses two point for thought law is concerned with ( 10). Compare under, German copyright law the original of 2 for software of Sub_clause 2 requirement is higher, at least before software of European Union protects instruction to come into effect , in the most software cases that German federal Supreme Court tries in it, always, for the original of software, holds the attitude denied , the discussion that causes the ideological expression law of two point never be spread out really( 11). Arriving correspondingly, in Germany protective software than is more few in America. According to statistics, in 鎵€鏈?software on German market only 5% can get the protection of copyright law( 12). - - - - American Supreme Court is the most important judgment in the aspect of copyright field original in 1992 for the judgment of consuming Si-Te-Yi case. This judgment does not recognize to take the forehead perspiration of leading position before and collect principle hard, do not protect the very fact message, and it is independently creative to protect only to embody on arrangement and the choice of material , also have the database of the innovation of small degree. The influence of this judgment surpasses database scope to some extent, the original judgment of affecting for software( 13). The copyright law of - - - - America always follows the goal of constitution that copyright clause stipulates and promotes science and art to make progress. The head of expression and the thought of distinguishing points and the original of software one decision criteria, is whether the realization that is helpful to promote this constitution goal. And by pragmatism influence, the leading opinion of America is considered , for the investment of software the more, for scientific and artistic progress promote to be the more big. Even if is the technical thought of software essentially, only come from the investment of labor and money, also this kind of investment for completion the function of software is necessary, may carry out copyright as expression to protect. So, 1986 of basis WhelanAssociatesv, the judgment of JaslowDentalLaboratories a case belongs to organization, order and the structure of ideological category essentially( structure, sequenceandorganization), have gotten copyright once to protect. 1991 ComputerAssociatesIntrnationalv.Altai, Inc. The court of a case has accepted the judgment principle of consuming Si-Te-Yi case , do not advocate protect copyright extend from the expression of original to thought. Consuming Si-Te-Yi case and ComputerAssociates a case are considered , the very judgment of original, instead of forehead perspiration standard, to decide , whether receive copyright protect and distinguish the only standard of ideological expression( 14). It is former that software of - - - - in European Union protects instruction promulgation and comes into effect , author right traditional country always applies to the strict original standard on general works software. Get up relatively with America, the original of author right tradition the unique contact between more emphasis author and works, emphasis author carves the character printed on works. That is said, it is insufficient to accomplish author independent creation only instead of plagiarizing , the expression of works must embody the character of works. So the judgment of original the requirement concerning cannot depart from ” personal Indian notes( personalimprint)”. As international software industry is increasingly intense as competing , most European author right traditional countries with France as representative realize gradually that software is a kind of highly technical product , leaves from the actual angle of the investment interests that protects software industrial business, instead of from aesthetic property leave well with individual, the court of France, on the original judgment problem of software, has got the greater loose requirement, that does not insist to be suitable for for software” personal Indian notes( personalimprint)” , but is to be suitable for ” personal contribution”( personalcomtribution) this lower standard( 15). Compare however under, Germany still stubborn have seen. In the software case of the trial of Supreme Court in Germany, in the Betriebssystem a case of 1991 years, the original judgment of software works divides two steps to go on , is first to walk to ask the character of embodiment author, second step is asked to embody the degree of author character to want the level of surpassing general software apparently. For this, criticism opinion is considered , the original high requirement that German Supreme Court is suitable for in this case in, have even surpassed German copyright law is for the stipulation of original ( 16). For this, the software protection of European Union that has come into effect instruction has point out especially in the 8 of the common stand before text, the original of judgment( software) must not be suitable for the test for aestheticness or the quality of software. Additionally, the 3th money of Sub_clause 1 of this instruction stipulates , the original judgment of software sees it whether create for the intelligence of works independence, and should not be suitable for other decision criterias. So, will cause Germany to have to reduce the requirement for software original. In all 4[2] [3] [4] 銆€銆€Next 网络优文
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law In is enterprise shallow Chen Take off a kind of mechanism of survival of the fittest as market economic condition, enterprise buies deploy and adjust industrial structure for optimizing resource , use scale efficiently economic benefits and realization production and capital expand winner quickly, take important role. Program, enterprise buies and prerequisite is asset and capital verification with difficulty , limit property right and assessment asset. For the tangible asset that has the form of material object , these problems are not difficult. Intangible assets are different, because it does not have the form of material object, intangible assets are neglected very easily by people, assessment does not be also just and objective, either underestimate or estimate high. Cause enterprise asset if underestimating run off; If estimate high is for another square rights and interests hurt. Therefore analyse and limit enterprise intangible assets and science correctly , evaluate intangible assets accurately, legal deal with intangible assets justly, it is very necessary for promoting and ensuring the smooth realization of enterprise.The intensionThe definitionIntangible assets this concept leads into our country along with the development in-depth of the reforming and opening up of our country. But so far have no a recognized definition yet. The enterprise financial general rule implemented on November 30,1992 has taken off a definition for the first time with the form of official file to intangible assets, think ” intangible assets denote enterprise to use but have no asset of the form of material object for a long time. ” this definition has though pointed out some characteristics of intangible assets, if do not have the form of material object , when enterprise production the long-term useful etc. in operation, do not but reflect intangible assets in raising enterprise the ability of profiting the role of aspect, have not explained more what kind of profit intangible assets can bring for enterprise.The characteristicHigh input. If intangible assets are not formed out of the void, often need person and property on plenty of input and expenditure, some multinational big companies, it makes trade mark , often spends 100000000 dollars to make the straightforward sense and uniqueness that investigates and expounds and proves and expounds and proves and designs for trade mark and may identification.High risk. Liquid assets and fixed assets, if investment fails , can still have incomplete value. And intangible assets are different, because do not have the form of material object, so, once the failure of investment, it is thorough failure, even incomplete value also has no.Efficientance. Intangible assets form to though putIt is creative. Intangible assets are asked relatively high therefore because of having the professional, technical content than winner to compare the creative, opposition repetition of winner. This when trade mark, patent, copyright and technology decidedly in Qiao etc. intangible assets show particularly obvious.Accumulation. Intangible assets form accomplish in one move decidedly, it is a kind of long-term accumulation of the manpower investment of early stage, some is even few acting persons the effort of, tens of acting persons just forms.ClassificationAbout this problem, domestic and international nowThe intangible assets that American comment is concerned with for worthing company have reached 23. This 23 is: ( 1) patent; ( 2) chartered right; ( 3) prescription: ( 4) copyright; ( 5) trade mark: ( 6) specialize in right: ( 7) trade contract; ( 
computer software; ( 10) lease rights and interests; ( 11) preference financing; ( 12) business reputation; ( 13) business secret; ( 14) technology secret decidedly; ( 15) staff troops; ( 16) minute pin; ( 17) pack pin; ( 18) core depositor foundation; ( 19) unemployment appraisement; ( 20) production sell system with pin; ( 21) microfiche; ( 22) right; ( 23) Advertisement material.It is 14 that some domestic scholars think that the content of intangible assets includes , they are: ( 1) trade mark right; ( 2) patent right; ( 3) special technology; ( 4) copyright; ( 5) chartered right; ( 6) computer software and network technology; ( 7) domain name right; ( preference contract; ( 9) business secret; ( 10) labourer force combination; ( 11) business reputation; ( 12) let pin network; ( 13) land role right; ( 14) lease right. The above-mentioned right of domain name, the name of unit in computer internet.The method of theThe methodAccording to world, the assessment method of passing through example and intangible assets has 3 kinds i.e. cost-or-market method , market law and profit law. Assessment and the classification of intangible assets are for elephant and assessment purpose not at the same time, assessment method is also not identical. In the major exposition enterprise of this text buies and the method of the disposal of intangible assets, it is taking intangible assets as investment means or transfer object land the method of trip assessment. It may be individual intangible assets , may be also a group of intangible assets , may be even still the assessment of the intangible assets overall transfer. Go up , intangible assets not is as individual factor of production, is action a kind of the ability of profiting comes to evaluate , so, should be suitable for profit law.Countermeasure andCarry out science for intangible assets , evaluate accurately is just , deal with the prerequisite of intangible assets efficiently. The problem stressed now just evaluate is not scientific, not accurate , it is even disorderly, arbitrariness is greater, it is serious that asset runs off. Its major expression is:1 , ” Zheng make2, method is not scientific. If is former to state , the assessment of intangible assets because of assessment purpose and object different and suitable different assessment method. Some units are to not divide object and purpose , use a kind of method only or with the method of having been wrong.The non-stateIn field administration fee, list , do notAll these bring difficulty to the assessment of intangible assets. According to above-mentioned problem, the unified legal standard of the author that suggests to establish the assessment of intangible assets as soon as possible stipulates functionary, time, expression, organization and the form of the assessment of intangible assets in detail, with finish now Zheng many doors and people mix , the awkwardness of not scientific method situation.In enterprise buiesThe form ofIn all 2[2] 銆€銆€Next 网络优文
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law Discuss the XiaoA, assurance thing For assurance thing right, whetherAre you all right? This problem has some problems about suitable High People’s Court” assures theHundredth Sub_clause of 30 seemsFor assurance contract do not byDecidedly or ruling, directly carryIt is two different contract disputesIt is distinct , can not replaceAssure first that contract is litigatedPlease Should say , the above-mentionedIs regard as master contract andSay. If the scope of this explanationLie in , if extend to assuranceJust have the The author thinks , mortgageOn principle, may directly 1 is seen from the nature ofFor the value of thing, controlGive to pay behavior , even ifIt is purpose to give as securityRealize right , only change thingIn all 6[2] [3] [4] [5] [6] 銆€銆€Next 网络优文
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law Big MP3 incident related ThankProfessor One andNow south land Jian office prosecutor downloads MP3 illegally because of receiving the university student of in-forming against music, go to university student dormitory Search, checking to deduct 14 downloads have the personal computer of copyright music , arouse great disturbance and cause frightened students. A lot of students think that it is illegal to have no from network download MP3 music, satisfying crowd to rise support , have been checked the student that deducts between, momentary the problem of download MP3 becomes society go up get to focus attention subject, not only government official and legislative committee member expression concern, expert scholar also expresses its view one after another for this problem.Download the behavior of MP3 actually from network whether form heavy system, and and then form copyright hurt , after downloading , burn it to record to CD or copy MP3 walkman to let own appreciation or offering resource to share to friend use , whether is different, is worth for Wu person detail is probe. Besides, some related MP3 musics use problem, also should give Li settle , for instance purchase CD person, whether may in will this CD allows conversion form copy in computer to let own appreciation or offer resource to share to friend use? If purchase is pirated CD, is result different? Purchase CD whether may make spare?Above-mentioned problem involves the right that copyright law gives to ensure the rights and interests of copyright person content, as well as use space to ensure social reasonable the public for the restriction been by right scope. For these problems, this text refers to the related standard of others national or international organization , from the standard of the copyright law of our country , discusses respectively , issue can be helpful for the solution of problem.2 and MP3 music and 銆?br>After digital technology had been developed , digital music has been gradual to replace simulated type music get people like , its reason lies in the store way of digital type even if the duplication that endures many times, it can still keep and in former identical allow with quality. The property of this digital type, when net occasion network springs up afterwards, make it may Ji from the transmission of network, it is complete and transmits all parts of the world quickly. However since usual the files of music are pretty big, and the frequency width of network is limited, want to be able to transmit music quickly on network to be not easy matter , therefore have the appearance of the technology of MP3 ( Moving Picture Experts Group Audio Layer-3 ) then, will music files Compression. Through this Compression technology, though for some influences of tone quality of music, can reduce music files efficiently however , make it conveniently store and value system not only , can transmit quickly through network more. , because of MP3 music, have the property that this is easy to make and transmit again , make MP3 music broad receive everybody like , but also so cause music copyright person between and make choose a person for the job opposition. In fact, the most dispute concerning MP3 has close relation with heavy system and transmission. Following first various uses form and the relation between heavy system and transmission explain , afterwards, discuss again with this as foundation for the legalness of its behavior( one) turn CD musicDigital music has a lot of different forms, for instance MIDI, WAV, RealAudio and WMA, MP3 is in which one, however since its files are little, store and transmission are convenient and quick , and can maintain certain tone quality, become general person then most like. A lot of persons purchase CD afterwards, is can be convenient to listen appreciation, just is CD that avoids edition because of use frequently not Shen scratch, the music that can like self turns MP3 form store on computer. However because of computer, carry inconvenience, even if is notes type computer is also not portable, therefore somebody develops to make MP3 walkman , buyer may go up MP3 music further again from computer go to its duplicate MP3 walkman, with convenience when going out , may still appreciate music.Change the music in CD into the music of MP3 form , is the form of store only it is different with the medium thing of store just , although will exceed the sound of certain frequency scope in making the Compression process of MP3 form to delete , this slight change is not that the ear of general person can be easy to experience to distinguish , allow just in music have no essentially change, and after changing form, still store on tangible medium thing( Memory on memory card and mobile phone in Hard disk, MP3 walkman or PDA) , is to still belong to tangible repetitive produce with this kind of behavior of MP3 form of changing , namely form 銆?heavy system 銆? Is other , because of conversion form is from program automatic carry out conversion, have not yet joined the spiritual creation of any person , is so as will not so form 銆?alter to do 銆?( 2) upload MP3If uploading the MP3 form music in computer Hard disk on network, whether will be also concerned with another value the behavior of system? Deliver music through network the computer of other person on network, when other person calculate machine Hard disk can have a completely identical music , certainly, can form the behavior of heavy system. Right now, the behavior person of heavy system should be the person that uploads , because department takes off the instruction of transmission by it, and so, complete the repetitive produce of files. This kind of behavior uploaded , involve if not consider transmission process agenccy Server( proxy) or the automatic or temporariness weight been by others transmission equipment system, on principle, involve a weight only make behavior, namely the heavy system that the person that uploads is behavior; As have been uploaded the person had by website, though upload rear music files is to store in its computer Hard disk, however because of its , it is to offer Hard disk space to let that person uploads , it has no positive repetition to make behavior , have no independent heavy system behavior; Unless it uploads the weight of person , makes behavior to participate , this kind of case it may become to upload the behavior of person for making again is common or help behavior person.( 3) open resourceAs will the MP3 music in own Hard disk opens to others to use person, make it obtain through network, Let us not go into the question that this behavior whether form copyright hurt ( state at this point for details after seeing ), if watch since valuing the angle of system , simple open resource shares behavior may not will be concerned with another heavy system behavior.No doubt, the former behavior that stores music to own computer Hard disk will be concerned with heavy system, will the music files copy in Hard disk a set up in resource to share district, the behavior of this copy will be also concerned with heavy system; However if is to move this music files to move ( move) share district to the resource with a computer Hard disk, or direct will this music files case opens to share , should be still not directly concerned with the problem of heavy system. When this kind of case, if it goes to MP3 music store originally, the behavior of own computer had been believed to belong to legal heavy system, subsequently will it opens to share with other person, is the person of download because of making person again, even if opening to share person , have been thought that as download , behavior helps , also is the behavior of other person for making again help criminal, it has no the weight of a independence, make behavior. Have person perhaps can think computer after receive download instruction, meeting after will the files copy in its computer through pack( packets) transmission, and after download, its original files still exist , are so as when open to share have been downloaded end should also have the behavior of a heavy system, even when network transmission equipment can often also have automatic or temporariness heavy system. Only when these cases, even if that thinks to transmit pack or contain the partial contents of files in transmiting equipment, however because of technology going up it in entire transmission process cannot or a share that is short of , has no independent economic meaning, should not be regarded as again into another independent weight make behavior.Just since it is simple, with heavy system right, can not normalize the transmission behavior on network efficiently, therefore the two worlds that world intelligent property right organization( WIPO) pass through in 1996 are in treaty, is normalized especially for the transmission of network, give copyright person the protection than distribution, when 銆?copyright treaty in 銆? WCT) Sub_clause 8 stipulation, works person should enjoy open propagation right( Right of Communication to the Public), its content and interactive propagation and offer the right of works( Making Available to the Public) for the public, 銆?performance and recording thing treaty 銆? WPPT) Sub_clause 10 and 14th strip also stipulates , performance person and recording thing make person, should enjoy to offer the right of its performance and recording thing for the public. Our country is now carrying out the modification of copyright law , drafts the relevant open propagation in WIPO international treaty and the right scope incorporated for the right that the public offers into works property right person, make it get more the protection of distribution.( 4) from networkFrom network download MP3 music, will be also concerned with the behavior of heavy system, because through download instruction, website goes up calculate machine will be transmited and stored by designated files download person calculate machine Hard disk goes up. Right now, the behavior person of heavy system should be instruction store music download person, also, if not consider the automatic or temporariness heavy system in transmission process, the behavior of heavy system also has only one. Have person by the website of download before, and state open resource to share person is the same, under other person year does not form the heavy system of a independence behavior.( 5) weight systemHeavy system right gives copyright the most important economy right of person for copyright law, copyright person may sell its works countless many shares of pin of duplicating in order to realize its economic interests. Though, copyright person enjoys heavy system right , is not that other person must not make its works again absolutely however, besides agreeing or authorizing by copyright person, law based on specific purpose, the copyright law 44th of our country and the behavior that allowable other person has to also make for weight under certain condition are to the 65 restriction concerning works property right. Namely legislator through the restriction for works property right, reservation gives social the public a space that uses the works of other person , and do not solicit the agreement of copyright person in advance, also do not form copyright hurt.Can not think because of the behavior that has heavy system therefore it forms copyright hurt , the behavior that must in accordance with this weight make yet whether the restriction that does not belong to works property right scope decides , cannot lump together. For this with sight, 91th copyright law strip is the first to stipulate and can not be misunderstood for the behavior that has heavy system only , there is punishment sanction; And it should be that the behavior of this heavy system must be the behavior not agreed by works property right person, just this behavior permits because of being inconsistent with law 銆?use the works property right of other person 銆?behavior, just should this item form important document. Copyright law 44th stipulates to the 65 restriction for works property right, is not hindrance to break the law main content, accord with the restriction of works property right if valuing the behavior of system to stipulate , should form important document not should.3 and MP3 music related useAs above, whether form copyright hurt , make behavior again except having outside, must judge its behavior yet whether belong to the scope that copyright law 44th permits to Sub_clause of 65. For MP3 music, use the relation between behavior with student , is most concerned with the stipulation of 51th copyright law strip mainly: 銆?let individual or family be non-profit purpose, in reasonable scope, have to make using library and the machine weight that not lets the public use the works that had been published openly 銆? The purpose of this stipulation lies in to ensure private may contact to get the opportunity of knowledge culture , only this stipulation should how to explain is suitable, become barrier bond; The problem of key.( Yi) copyright the explanation51th copyright law strip is concerned with some important documents, namely must is 銆?let individual or family use 銆?, 銆?for non-profit purpose 銆?, 銆?in reasonable scope 銆?, use 銆?library and the machine that not lets the public use 銆? is just heavy system 銆?the works that had been published openly 銆?1. Let individualIn all 3[2] [3] 銆€銆€Next 网络优文
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law ” contract law”The Rationality of the Word “rational” of the Contract Law Xu Ling( Sichuan university, Abstract: In” the contract law of the People’sWord is just the embodiment of this departmentThe limitation of law foresight; Have embodiedWeight as well as itClose bond; KeyAuthor brief introduction: Xu Ling Jie andThe graduate 15 days of March 1999, the second meetingThe Chinese people contract law of theAt the same time, have abolished ” economicCome to our country ” 3 foots standLaw system.” it is “contract law”" summary severalHave increased many content recently:Fulfill counterplea and worry to fulfillGuideline will embody the meaning autonomyEnsure that involvedBrowse “contract law”, ” relevant reasonableThe stipulation of a word strikes thePlace( have used in hundredth Sub_clauseSecond Sub_clause of 13 stipulates “In all 6[2] [3] [4] [5] [6] 銆€銆€Next 网络优文
Posted on 10月 23rd, 2007 by Jurisprudence in
Civil law The judicial protection The yellow pine March 10 of this year, the Supreme People’s Court” the explanation about determining the civil tort spiritual responsibility some problems of compensation for damage”( following abbreviation “explanation”) announce to perform , get the universal welcome of all sectors of society. But as relevant media reports , people still have doubt and the divergence on understanding in studying and knowing the process of this judicial explanation for a lot of problems. I talks about the view of individual for the relevant problem of ” explanation “.One , about national After the Supreme People’s Court announces about the judicial explanation that determines the civil tort spiritual responsibility of compensation for damage , academic circle has given higher appraisement, think this is in the aspect of the spiritual system of compensation for damage of our country after general provisions of the civil law ” the following second milestone “, have reference for being drafting the ceremony of civil law in establishment meaning. But also having opinion think that this judicial explanation has ” grey region”, especially in criminal judicial field such as mistake catch and is wrong sentence etc. cause personal right to suffer the case of hurting seriously, having no stipulate , should give spiritual compensation for damage, this is a major leak and is short of regret. I think that need to clarify two basic concepts i.e. the concept of civil compensation for damage and national compensation here. According to the stipulation of national compensation law, state departments breaks the law with state functionary to exercise authority , intrudes the legitimate rights and interests of citizen, legal person and other organizations to cause infringement , aggrieved party has according to the national right that compensation law gets compensation. Country compensates to include administrative compensation and criminal compensation , its feature is to, in exercising the campaign of national public power, since state departments breaks the law with state functionary, exercise the tort compensation that authority produces , has essential distinction with country as the civil tort compensation that the person of private law occurs in civil campaign. In criminal judicial field because of mistake, catch and is wrong to sentence the scope that causes citizen personal right to suffer the aftermath hurt seriously and belongs to national compensation. Supreme Court establishes to confirm that the administration of justice of the spiritual responsibility of compensation for damage is explained , is the judicial explanation made according to the spiritual problem of compensation for damage in civil tort field , receives and saves simultaneously for having the national compensation problem of the quality of the same sex and being unfit for certainly , stipulates generally. If state departments and it functionary delivers person in civil campaign because of carrying out post spiritual infringement, the tort that coincidence method decides only forms important document, may undertake the spiritual responsibility of compensation for damage according to the stipulation of this judicial explanation. As to national compensation law whether should stipulate the problem that the spiritual responsibility of compensation for damage includes economic compensation , that is the problem of legislative consideration, judicial explanation has no right to do for this stipulate. 2 , for the protection Opinion is considered ,” explain ” enumerated may ask spiritual compensation for damage in every specific personality right, have omited a important personality right , is chastity right. In “explanation”, why have no stipulate chastity right? Are you the negligence had no intention or the exclusion wanted? I think that this kind of understanding is not overall. First, “explanation” is a kind of overall protection for the protection of personality rights and interests. That is said, not only cause serious aftermath for hurting the tort behavior of the personality right of other person and for hurting the behavior of the other personality interestses of other person, on principle, may ask People’s Court to confirm the spiritual responsibility of compensation for damage of infringer. ” explain ” the first protection for personality rights and interests scope, adopting specific list the way and abstract summary stipulation. “explanation” is the first and the first , minute 3 have listed current relevant civil legal stipulation specific personality right, such as life right, Health right, body right, honorary right, right of fame, the right of full name and portrait right, as well as it has the right of personal freedom and the right of personal dignity of general personality right meaning. The first second money of ” explanation ” has stipulated in order to violate the way of social public interests and social ethics to hurt the privacy of other person the tort type of or other personality interestses. Its legal basis is the general provisions of the civil law of our country stipulation ” civil campaign should respect social ethics, must not harm social public interests “. Here, close bond; Key is for this summary ” other personality interests” stipulation should how to understand? I think that natural person enjoys extensive personality interests and these personality interestses, contact with the personal dignity of natural person, embody social attribute and the natural attribute in the personality of natural person, some have been legislated clearly is stipulated as specific civil right, as the portrait right, honorary right, right of fame and right of full name, become specific personality right; Some have not been been stipulated as temporarily yet civil right, such as free as well as ethics feelings etc. and the peacefulness on privacy, chastity and spirit. Fit up work to hang in the bridal chamber of others to commit suicide, why will decoration company undertake the spiritual responsibility of compensation for damage? Is because this kind of behavior violates social ethics , have hurt peacefulness and the freedom on the spirit of other person; Steal and sell the remains of the dead, why will you be for its close relative to undertake the spiritual responsibility of compensation for damage? Because this kind of behavior violates social ethics also, have hurt the ethics feelings that the close relative of the dead belongs to. In other words,” other personality interestses” is a open concept, have very strong generality and tolerantance. Chastity is to can be contained the in which as a kind of personality interests. Secondly, “explanation” explains as administration of justice that the principle of implement legislation is allowed in with spirit and nominal can not is balanced with legislative stipulation Chu. Privacy right is also good, chastity right is also good, and even peaceful right also Ba, is since having been put forward as a kind of right requirement in practice the awakening of the right consciousness of and contemporary social universal development has adaptive appearance, but it has no quilt current civil legal confirmation is civil right, judicial explanation can not also surmount legal assigned direct confirmation it is a civil right. According to spirit and the principle of legislative law, civil right is from the civil legislation of country comes to confirm and distribute. This whether signify to have no quilt the legal interests with civil legal confirmation of civil right have to protect until law? Is not certainly! Sub_clause 5 stipulates general provisions of the civil law clearly: ” the legal civil rights and interests of citizen and legal person are protected by law, any organization and individual must not intrude. ” ” civil rights and interests ” include right and interests, therefore, for the judicial protection of legal personality interests should have in the problem that is the spiritual system of compensation for damage justice. In the past, think that interests had been only confirmed for right , hurt for interests to just form tort. Therefore, as have not been confirmed for civil right interests hurt , can not directly form tort , and can only offer judicial protection through indirect way. For instance, not be agreed by involved party illegally reveal the privacy of other person, causing the reputation of other person to demote harm , according to intrude honorary right handling, it is to have the aid of the law of honorary tort to form important document , gets the case of hurting for privacy to give indirect protection. Adopt to protect way indirectly, is because according to tort behavior form important document to judge , it is that violation of rules prohibits sexual assigned behavior to directly hurt the behavior of right, it has illegalness. Having not been gotten by the interests with legal confirmation of civil right hurt , can not confirm hurt behavior and have violated , is legal to prohibit sexual stipulation, can not also confirm the illegalness of behavior , can not so believe should hurt behavior to form tort. Current civil law has no to confirm privacy right , therefore, hurt the behavior of privacy can not be directly confirmed is hurt privacy right, can only when aggrieved party suffers reputation therefore to demote harm condition take off, confirm it indirectly to form to hurt honorary right. This signifies that a kind of interests will get the protection of tort law, want this interests on civil law is already been by direct confirmation a civil right, want tort law stipulates separately have other illegalness decision criterias, otherwise can only adopt indirectly protective method , and make a part of legal interests can’t get effective legal protection. Therefore for the protection of legal interests, problem changes the problem of how to hurt behavior illegalness to confirm. In this respect, foreign relevant legislation and legal precedent have offered very good experience to us. This experience is , if a behavior violates social ethics or the public interests of society openly, hurt property interests or the personality interests with legal other person, this behavior has illegalness , forms tort. On the wall of neighbor bedroom, install Monitoring device; Peep at , this kind of behavior belongs to , violate social ethics to hurt the tort behavior of the privacy of other person. The basis that forms tort not is because of the specifically civil right of having hurt other person of this behavior, and is since hurt behavior to violate social ethics , have hurt the personality interests with specific other person , is to have hurt the privacy of other person in this case. Because of the openness of personality interests concept, the legal morals had by the intensions of social ethics and as well as social public interests melt and morals law the nature that melts , “explanation” is overall, extensive for the protection of personality rights and interests , has reached unprecedented level, therefore some scholar thinks this is for personality rights and interests” the most overall protection”. 3 and plant popular Some scholar thinks , a person becomes plant person or the person of mental diseases because of being injured afterwards, he does not have spiritual feelings ability , is not as painful as spirit , also far from being harms therefore for its compensation spirit. It is spiritual and damaged that I think that this is concerned with a basic concept problem i.e. what? According to social general idea and theory that has influence theoretically , spiritual infringement denotes the spiritual painful pain of human body. The privacy of a person had been revealed illegally , or had been frisked when market does shopping illegally , can often produce the various bad moods such as anxiety, anger, hatred and humiliation and feelings; Body gets injury, cause limbs deformity , appearance had been destroied , can also at the same time cause the huge pain and spirit of human body to be painful. Some person is throughout life sad and depressed , has no joy of life; Some person gets maximum injury because of personal dignity , is hard to bear humiliation and the pain on spirit and makes up mind to commit suicide. But in life, there is also additionally a kind of case, the person of a normal Health becomes plant person because other person Car causes trouble , loses feelings ability, is this a kind of spiritual infringement? Have been stolen the mother of baby since spiritual extreme pain becomes the person of mental diseases, is this also a kind of spiritual infringement? Since clamping to produce surgical operation , cause new-born brain paralysis, has aggrieved party spiritual infringement? If think that spiritual infringement denotes spiritual pain , so a plant person, brain paralysis patient or the person of mental diseases who loses behavior ability completely , is really hard to say very much they what spirit harms. But one has the person of the spiritual feelings ability of normal Health , has lost this kind of feelings ability because of hurting behavior , makes it can not experience feeling and the vicissitudes of life of human world again, this kind of feelings person the ability of the taste of joy of life had been deprived , though, it is not a kind of positive spiritual infringement, is another kind of form the negative spiritual infringement on form. This kind of spiritual infringement is hard to be remedied , is worth for people to sympathize with deeply , should also get the relief of legal justice. In explaining the process of drafting , our knowledge for that spirit harms this basic concept is to stand in this stand actually. Just because as this,” explain ” Sub_clause 7 becomes plant for causing aggrieved party because of tort behavior popular support the complete case of the person of mental diseases who loses civil behavior ability, have not made special stipulation , only get the case of hurting after causing the death of aggrieved party or the death of natural person , it is indicted that stipulation belongs to the indirect aggrieved party in scope by close relative as plaintiff. Reason is that recognize that negative spiritual infringement is also a kind of spiritual infringement, person and the person of mental diseases may directly indict plant with the identity of plaintiff; Since tort behavior is lethal, or after natural person dies , remain and remains etc. get to hurt , can only be indicted by indirect aggrieved party, the scope needs of indirect aggrieved party determine that therefore, the Sub_clause 7 of ” explanation ” stipulates specially. Certainly, person and the person of mental diseases indict plant, needs its agenccy person agenccy goes on. Should think that “explanation” harms the understanding of concept for spirit , is that inheritance also develops. Thus it can be seen, protection and the ample respect for personality right are the starting points of this established judicial explanation throughout, is counted with natural end. 4, the personality right Explain Sub_clause 5 to stipulate: ” legal person or other organizations suffer with personality right to hurt is from, to People’s Court, indictment is asked to compensate spiritual infringement, People’s Court does not sustain. ” some person puts forward legal person is civil and main with natural person, it has the personality right on law , why isn’t the spiritual request of compensation for damage for legal person supported? About this problem, need to make some clarifications. First, natural person and legal person have personality right , have the main qualification on law , this has no doubt. The spiritual request of compensation for damage concerning not support legal person is not to deny that legal person has personality right. Some opinion has drawn personality right and spirit between infringement equal sign, think that do not support the spiritual request of compensation for damage of legal person, whether accept the personality of legal person right, this is a kind of misunderstanding. Secondly, for the personality right of legal person besides hurt except possibility cause property to harm , can also cause non property to harm. It is not the relief way of also adopting money compensation , is a value guidance problem whether this kind of non property infringement is to be also called spiritual infringement. See since coming logically, natural person and legal person though social value is similar, but humanity intension is different. The personality right of natural person has the humanity intension of ” human rights ” and the personality right of legal person, have completely different nature on this meaning. As a kind of value choice, the emphasis of spiritual damaged concept is the thing of this kind of different quality coincidentally, the humanity intension in the emphatic personality right of natural person has the spiritual value of attribute of ” human rights ” in the emphatic personality right of natural person, this is one side of humane care that the spiritual legal system of compensation for damage has. Get the personality right of legal person to hurt the non property damaged spiritual infringement of natural person that occurs equates , in go to the thing ownership of two different qualities a same logic concept, obviously , it is not appropriate. 3th sees from the angle of compensation for damage that the infringement that says on civil law includes harming and being not property infringement on property, legal entity gets because of personality right to hurt and the damaged aftermath that causes is the infringement on property in principle, because as the personality right of legal person that has commercial identification and business reputation nature on commercial law, in principle, it is a kind of invisible property right. If honor and the reputation of legal entity are a kind of business reputation essentially, business reputation gets to hurt , can arouse order decreasing and pin to sell quantity decrease , not because the organization of legal person that causes to have no feelings force ” spiritual pain “. Office organization and institution legal person though and seek profits sexual legal entity is different, but in the aspect of not have spiritual feelings force, have no essential distinction. Through the protection for invisible property right or by competitive law, adjust indirectly , it may get ample relief if the personality right of legal person suffers to hurt. The stipulation of ” explanation ” accords with world trend on value guidance, also have it theoretically basis. 5 , about the problem In all 2[2] 銆€銆€Next .
