死者生前人格上财产利益之保护

死者生前人格上财产利益之保护

Protection of Property Interestson Personality of the Deceased

    期刊名称：《法学研究》
    期刊年份：
    作者：张红
    单位：中南财经政法大学
    中文关键词：人格权;人格上财产利益;公开权;无形财产权
    英文关键词：personality right;property interests on personality;right of publicity;intangible property right
    中文摘要：
    人格权内含精神与财产双重利益。对人格上财产利益的保护是人性自主的必然结果，且不论人之生死，人格上之财产利益皆应受保护。生者人格上财产利益保护应采用德国法上一元论的人格权保护模式，而死者人格上财产利益保护则应参照美国法上的公开权模式。利用死者生前之人格特征获利的权利乃一种无形财产权，归属于死者之继承人。继承人行使此项权利需按照死者明知或可推知的意思进行，权利行使期限宜为50年。
    英文摘要：
    Personality rights include spiritual interests and property interests on personality, which has already been widely recognized by law all over the world. Property interests on personality derive from the commercial use of personal characteristics. Utilitarian arguments such as labor property theory, incentive theory and economic models of law theory can not fully demonstrate the legitimacy of the protection of property interests on personality. In fact, the protection of property interests on personality is the inevitable requirement to maintain human dignity and safeguard the freedom of humanity. Furthermore, on the analogy of the property rights on works, we can find its legal ground in current law. Whether alive or dead, the property interests on personality of a human being ought to be protected. In the context of current legal system in China, the protection of property interests on personality of a living person should adopt the monism model and unify the spiritual interests and property interests on personality under the overall protection of personality rights without the creation of another independent property right on personality. The protection of property interests on personality of the deceased should refer to the model of publicity right of American Law. Both the use and making profit from the personal features of the deceased are the content of an intangible property right of benefiting from the personality of the deceased, which must belong to the heirs of the deceased. The exercise of this right should be in accordance with the known or supposed will of the deceased. The exercise period is suggested to be 50 years. When this intangible property right is infringed, the successors could claim the infringer to stop the infringement, compensate for the loss and restitute the unjust enrichment.
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