Natural persons enjoy the right of name, and have the right to decide, use, change or permit others to use their own names according to law, but they shall not violatepublic policy 。（《Civil Code of the People's Republic of China》Article 1012）[1]
No organization or individual may infringe upon the right of another person's name by interfering, misappropriating, or counterfeiting.[1]
《Civil Code of the People's Republic of China》Article 1012It is stipulated that natural persons have the right of name, and have the right to decide, use, change or permit others to use their own names according to law, but they shall not violate public order and good customs.
Article 1014No organization or individual may infringe upon the right of another person's name by interfering, misappropriating, or counterfeiting.[1]
Article 1015A natural person shall follow his father's or his mother's surname, but in any of the following circumstances, he may choose a surname in addition to his father's or his mother's surname:
（1） Select the surname of other lineal elders;
（2） The family name of the dependant is chosen because it is maintained by a person other than the legal dependant;
（3） There are other legitimate reasons that do not violate the public order and good customs.
The surnames of natural persons of ethnic minorities can follow their own cultural traditions and customs.
Article 10116If a natural person decides to change his or her name, or a legal person or an unincorporated organization decides to change or transfer his or her name, he or she shall go through the registration formalities with the relevant authorities according to law, except as otherwise provided by law.
If a civil subject changes its name, the civil legal act implemented before the change shall be legally binding on it.
Article 10117For pseudonyms, stage names, online names, translated names, shop names, names and abbreviations of names that have certain social popularity and are used by others enough to cause confusion among the public, please refer to the applicable provisions on the protection of name rights and name rights.[1]
Content of rights
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Right to rename
The right to change names meansnatural personThe right to change one's surname or first name according to law is allowed as long as it does not violate the mandatory provisions of the law and public order and good customs, but only needs to go through the change registration procedures at the household registration management department.
The right of name change refers to the right of a natural person to change his name according to the law, also known as the right of name change.It means that a natural person can change his or her name according to his or her own wishes and regulations without other restrictions.suchChange NameAlthough the act of a third party may take effect only according to the unilateral declaration of intention, it may not act against a third party without publicity.The change of registered name must also be registered, and the registration procedure for illegal change is ineffective.
Right of use
The right to use one's name means that a natural person uses one's own name according to lawExclusive right of use.The use of one's own name is an important part of the right of a natural person's name. A natural person may use his own name, pen name, stage name or alias in civil activities, unless otherwise stipulated by law.No organization or individual may force a natural person to use or not use a name.
The right to use names is exclusiveRight of use, others may not use others' names intentionally.In reality, the phenomenon of duplicate names is not a tort.Duplicate names are also called parallel names, that is, several people legally obtain the same name.Under such circumstances, everyone has the right to use his or her own name, which is also a legitimate exercise of rights, except for intentional confusion.
Name UsageIncluding active exercise: mark your name on your own articles and works asRights subjectSign of;Use names on specific occasions to distinguish them from othersMembers of society。Negative exercise: no signature on the work;Refuse to disclose your name after specific behavior.The limitation is that under certain conditions, natural persons are not allowed to use informal names, such as official names must be used on household registration, identity cards and passports.
The name may also be transferred to others for use.Usually, the names of celebrities often contain great commercial value.Because the history of the struggle of celebrities can usually give people great encouragement, and people's psychology of loving house and country makes names become the symbol of celebrities, so names also have a certain commercial value.For example, Li Ning sportswear;Jordan sneakers.The transfer of the right to use the name can be realized by means of name equity, or by means of payment of business remuneration.This actually reflects the property interests of the right of name.The interests embodied by the right of name, analyzed from the above contents, are spiritual interests.In modern society, the spiritual benefits of the right of name may also bring certain economic benefits. For example, publishing works under the pen name of a famous writer can earn royalties, and using the stage name of a famous performer can increase the box office value.However, in the specific personality right, the economic benefits of the natural person's name right not only differ greatly from those of legal persons and firms, but also differ greatly from other personality rights of natural persons, such as the right of portrait.The spiritual interest of the right of name is its basic and most important interest.
Naming rights
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The right to decide a name, also known as the right to name, is the right of a natural person to decide which surname, first name, and their combination to use.The naming right of a natural person is exercised by the head of household, relatives, dependents, or neighbors after birth, but this does not affect the right to change the name of a natural person who has the naming ability.
No one has the right to interfere with the right of self naming.In principle, the surname of a natural person cannot be selected.In our real life, children have the habit of following their father's surname, but the current Marriage Law of China stipulates in Article 22 that "children can follow their father's surname and their mother's surname." If a natural person chooses a new surname according to law, the law should not interfere.Even if a woman marries by adding her husband's surname to her own name, it is also based on the party's ownwilldecision.
The name is generally determined by the parents of a natural person at birth, but this is not a denial of the right to self naming. In fact, it is the parentsParental authorityThe performance of is that parents implement the agency behavior of parental power.When a natural person becomes an adult, he or she may also change his or her name through the name change procedure.Another manifestation of the right of self naming is the right of natural persons to choose their own aliases. They can determine pen names, stage names and other corresponding names other than registered names according to their own will and wishes, and no one can interfere.
Tortious conduct
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Main performance:
1. Interfere with others to decide, use or change their names.
2. Embezzlement of others' names.Embezzlement of others' names refers to carrying out certain activities in the name of others without their consent or authorization in order to raise their own value or seek illegitimate interests.
3. Use another person's name.It refers to using others' names to impersonate others for activities to achieve certain goals.
The difference between the embezzlement and the fraudulent use of names: The embezzlement mainly refers to the theft of someone's name, and you may not be the person whose name you are.For example, A steals B's name and tells C that he is B's friend, so as to cheat C's trust and gain some benefits.An impersonation is the impersonation of a person's name, and the person who plays the role of the name is himself.For example, A says that he is B. He cheats to gain some benefits.
The right of name belongs to specific personality right, which meansnatural personThe right to decide, change and use his name.Name includes registered inResidence bookletThe official name, stage name, pen name and other informal names of.
Tort liability:
The infringement of the right of name is mainly manifested in the interference of othersMisappropriationCounterfeit, if the above situation is found,obligeeThey can demand to stop infringement, restore reputation, eliminate influenceApologize、Compensation for losses, grant consolation money (the right of name shall not be claimed), etc.
The main legal bases for adjusting the above issues are:
3、 Opinions of the Supreme People's Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation)
4、 Household Registration Regulations
Basic theory
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Ownership theory
German scholarwilder (Wiarda) believes that the right of name, like the ownership, can fight against the third party and has the power to exercise at will, so it has the nature of ownership.French RevolutionLater, the French judicial department regarded the name as the ownership of citizens in the case, and believed that the false use of other people's names infringed on the ownership of others.
Property right theory
1870, French scholarMolletThe right to personality is addressed in a book on copyright and industrial copyright.In 1877, German scholar Gareth put forward the concept of personality right, but he classified reputation, name, and the right of individuals to arrange their lives according to their wishes as intellectual property rights.Staub, a German scholar, believes that the right of name has no tangible object and can only produce economic value under certain circumstances and can be disposed of, so it is an intangible property right.In 1907, Coler believed that the right of name, portrait and privacy belong toCopyrightContent of.
The first judicial recognition of the right to privacy in the United States and Britain occurred in such cases: the defendant used the plaintiff's name and photo in the advertisement without the plaintiff's consent.Early Anglo American jurists believed that this kind of protection of names, portraits and other imagesrights of privacy(right of privacy) is an unconventional example of intangible property rights. It is usually discussed as a branch of tort law, but in reality, it should be a branch of property law.
Theory of personality right
It has been concluded that the essence of the right of name is the right of personality.The social function of name determines the essence of the right of name.First, because the name has the function of indicating the hierarchical relationship, the name can become the object of the right of identity.Second, while the right of name evolves from identity to contract, it also evolves from identity to personality.Third, with the development of market economy, names no longer only reflectPersonal interestsThe names in the economic field reflect the essence of property rights, and the names in the ethical field reflect the essence of personality rights.The dual era of the nature of the right of name has come.
Draft Civil Law of the Qing DynastyMatsuoka Yizheng, one of the drafters of the General Provisions, creditor's rights and real rights, believes that life, body, reputation, etc. are all legally fabricated goods necessary for maintaining personality. Personality right is the right to dominate these legal goods, that is, personality right is "the right to dominate legal goods that cannot be separated from personality. Legal goods that cannot be separated from personality are necessary for maintaining personality.If it is absent, personality will be eliminated and cannot be regarded as human existence.Such as life, body, reputationfree、SurnameandfirmWait is also ".Matsuoka Yizheng's thought of regarding the object of personality right as "the goods fabricated by law" easily obscures the essence of the right of name.By comparison, it can be inferred that this idea has influencedCivil CodeFormulation of Article 8 of Legislative Principles.
In 1928, the legislative organ of the Republic of China formulated the explanation of Article 8 of the legislative principle, which states: "Whether the name isPrivate property, or whether it can be protected by law like other property, which is a question.However, most countries in modern times believed that they should be protected by law. "The explanation of the legislative principle shows that the legislators at that time did not reach an agreement on the understanding of the nature of the "right of name".What it affirms is that the name should be protected by law, and it does not answer what is the essence of the right of name.This explanation is groundless.
Traditional personality right law
He believes that the right of personality is an exclusive and inherent right, and the object of the right of personality is inseparable from the subject and cannot be transferred to others.The representative view is the opinion of the German High Court in the "NENA case".The case is as follows: according to singer NENA andplaintiff(Intermediary group), the plaintiff has the global exclusive right to use NENA's portrait and name on various commodities, and NENA assigns the portrait right and name right necessary for commercial use to the plaintiff, and the contract is valid for seven years.After the plaintiff has obtained the authorization, the plaintiff shall be responsible for signing the authorization contract with the manufacturer who intends to apply NENA photos to the products and collecting royalties.Later, the plaintiff found that the defendant distributed the goods printed with NENA photos without his consent or NENA's own consent, so the plaintiff filed a lawsuit against the defendant and requested the defendant to pay the equivalent ofRoyaltyAmount of.The defendant defends that the plaintiff's act of obtaining the exclusive right of use should be invalid, because the right of portrait belongs to the right of personality and cannot be transferred.After hearing, the local court ruled that the plaintiff won the case and the defendant appealed.The High Court accepted the defendant's opinion that the right of portrait belongs to the right of personality and cannot be transferred, and the contract between the plaintiff and NENA hasEffect of creditor's rightsThe plaintiff did not obtain the right to oppose the third party, and the defendant was obligated to compensate NENA for its unauthorized use, so the plaintiff was sentenced to lose the lawsuit.GermanyFederal Supreme CourtAffirming that the right of portrait is part of the right of personality, he believes that the photographed person has the right to dispose of his photos freely, and he can also consent to others to use his photos. This consent can be expressed or implied, and can also be the right to authorize distribution with restrictions or unlimited. As for the effect of consent, it should be explained and determined according to the specific circumstances of the case whether the right of portrait in this case can be transferred,Since the plaintiff does not claim its right of omission, but only claims the payment equivalent to the royalties, its request should be based on the permission of unjust enrichment, and according to the general authorization contract between the plaintiff and NENA, the plaintiff also obtained the right to collect royalties from a third person, thus overturning the opinion of the High Court and changing the plaintiff to win the lawsuit.
Commercial personality right
In view of the increasing commercialization of personal images such as names and portraits, and the drawbacks of traditional rights theories, the theory of commercial personality rights believes that commercial personality rights refer to citizenslegal personIt is a civil (commercial) right enjoyed in order to safeguard the specific personality interests with commercial value, including economic interests, in its personality.The advantage of this theory is that it breaks through the shackles of the traditional rights classification theory and recognizes the economic connotation of names.This is a thinking direction to solve the commercialization of names, portraits, etc., and this theory has also been recognized and echoed by the Chinese academic community.However, the theory still has the following shortcomings:
First,Commercial personality rightSaying brings great difficulties to legal reasoning.The biggest drawback of the theory of commercial personality right is that it gives a concept - personality right - dual connotations of economic interests and personality interests, which results in the inconsistency of form and content and violates the logical taboo.The result will undoubtedly bring great difficulties to legal reasoning.
Second, it confuses the boundary between personality right and property right, dispels the type significance and demonstration function of personality right and property right, and further reduces the selfroman lawSince then, it has gradually established the right system thinking function.This viewpoint defines the economic interests of names as the connotation of personality rights, which not only breaks through the boundary between traditional personality rights and property rights, but also confuses the boundary between personality rights and property rights.This is in recognition of the propensity of personality rights to property, but the property is the personality elements, not personality rights.The property of personality right is a wrong and dangerous formulation.It can be said that the propertization of personality rights strongly dispels the type significance, demonstration function and cognitive value of personality rights and property rights, further speaking, it even reduces the systematic thinking function of rights gradually established since Roman law, and destroys the formal rationality of civil code or civil law theory.
With the development of economy, the owners of image signs such as names and portraits begin to commercialize these personality signs.Even in the West, the commercialization of names, portraits and other images has become a large-scale industry.The market economy enables personal images such as names, portraits and voices to be transformed into tangible wealth.At the same time, disputes about the commercial use of personal images such as names and portraits have also arisen one after another, including the case of Lu Xun's right of name, the right of portrait, and Yao Ming's right of nameportraiture rightCase, Martin·Luther·Gold portrait case“Elvis Presley”Name case, "Hailan" case, "Saniqi" case, etc.The stipulation that the personality right cannot be transferred or inherited in the personality right law has the nature of jus cogens.This provision has hindered the establishment of the property protection rules for the commercial use of names.
theoretical basis
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1. The theoretical basis of the nature of "name right" property right
System is the product of human desire. When there are frequent disputes about the commercialization of personal images such as names and portraits, the law should not be absent.The theoretical basis of the nature of the property right of the right of name is still blank.Even for property rights, their theoretical basis varies from person to person.For example, Pound argued that at least six groups of major theoretical explanations should be confirmed.Among them,Preemption theory、Labor theory、utilitarian theory 、Personality theory、Social Planning TheoryIt is the more influential among these explanations.This article will combine the preemption theory, utilitarianism theory and personality theory to demonstrate the legitimacy of the property right essence of the name right.
(1) Preemption theory
Natural law schoolThe property theory of the theory comes from the ancient concept of Roman law, that is, "natural acquisition" of property based on pre occupation or processing.According to the preemption theory, ownership ultimately depends on the control of a thing that has never been owned.That is, the act of taking possession of the ownerless thing that can be used as property with the intention of ownership, so as to obtain the ownership of the thing.
(2) Utilitarianism theory
HumeIt is believed that the development of human society depends on the "general consciousness of a general interest", which leads people to admit thatLegal rulesThe necessity of.The insatiable greed of human beings and the lack of natural resources inevitably lead to the unequal distribution of property.However, the peace and security of society need to be protected, so the legal system can be produced and developed to ensure that everyone can enjoy everything he has obtained peacefully, whether because of luck or by his own hard work.Finally, he came to the conclusion that "the customs of property distribution and the stability of possession are the most necessary things for the establishment of human society in all cases. Later, Adam Smith developed Hume's theory, and he advocated that no matter how property was acquired, it should be protected if such acquisition is beneficial to society.
(3) Personality theory
Kant 、FichteAnd Hegel's transcendental philosophical theories constitute the main source of personality theory.Kant and Hegel's personality theory includes two aspects:
First, the right of personality has ethical significance.
Kant and others pay attention to the ethical value of human beings.Kant believes that law should be based on human autonomous rationality, and human beings should be for the purpose itself, rather than being judged by moral order.Kant "highly esteems the inherent dignity of personality", and Liu Dekuan believes that "Kant's achievements in advocating the monism of human rights from outside the legal field cannot be ignored".Fichte's early thought "emphasizes individual freedom, independence and natural rights";Hegel "warned people to live a life dominated by reason, and pointed out that one of the basic requirements of reason is to respect the personality and rights of others".Hegel also believes that the necessary connotation of rights is to be a person and respect him as a person.Objectively speaking, their theory promoted the emergence of personality right.
Second, the right of personality also has property significance.
Kant and Hegel also emphasized the property of personality right.Kant divides rights into real right, personality right and personality right of the nature of real right (referring to family relationship).He believes that human rights are personal rights, which is based on the contract (Kant said that the contract is not a social contract, but a contract in civil law. He believes that the transfer of what belongs to one person to another through the act of joint will of two people constitutes a contract.
2. Difference between property name right and personality name right
First, the "name" of the property right of name is external and a symbol of consumption, which can be separated from the subject, so it can also be transferred or inherited.The "name" of the right of personal name is intrinsic and is a kind ofEthical symbol, cannot be separated from the subject, nor can it be transferred or inherited.
Second, there are different living areas and purposes.The property right of name exists in the economic field, and the name reflects the property value. Its purpose is not for the free development of personality, but to obtain economic benefits.The right of personal name exists in the field of ethics.The name reflects the ethical value, and its purpose is for the free development of personality, not for economic benefits.
Third, the upper concept of property name right is image property right or personal property right.The upper concept of personal name rightPersonal non property rights。Therefore, they are regulated by the property law and the personality law respectively.
Fourth,reliefDifferent approaches.first,damageAre different in nature.What the obligee suffers from is that the property name right is infringedproperty damageIs to expect the loss of wealth.The moral damage suffered by the infringer of the right of personal name is the loss of freedom and dignity.Secondly, the illegal behaviors are different.The former is usually manifested in the unauthorized use of others' names in the business field.The latter is usually manifested as improper use of others' names and interference with others' use of names.Finally, the way of relief is also different.The former applies to the claims of infringement, unjust enrichment and absolute rights.The latter applies to the claims of infringement and absolute rights.
3. Operation mechanism of property name right
The objects of property right of name and personality right of name seem to be the same, but in fact they are different.In the object sense, when a natural person's personality name (the first meaning) is applied to the property field, its ethics will disappear.Because ordinary people can distinguish the ethical meaning and property meaning of a name, a symbol.
4. Advantages of the dualistic nature of the right of name
First, it has constructed a new type of rights harmoniously within the academic tradition and maintained the completeness of the civil rights system.
The dualism of the right of name not only guarantees the basic characteristics of the right of personality, such as its irreducibility or inheritance, but also turns the right of name into an ethical right of name, which no longer has the connotation of economic interests and is a personal non property right.At the same time, it also affirms that the property name right is a personal property right that can be transferred orinheritSo that the boundary between personality right and property right can be observed.
Second, dialectically handled the relationship between personality and property.
Because the name has a second meaning in the process of commercial use, it is purely a personalityessential factorEven according to the standard of ordinary people, we can recognize that this name is not that name.Furthermore, names can break through the shackles of ethical significance and become property.In this sense, "name" has changed from "personality" to "property".Although the change from property to personality marks the progress of human legal system, the establishment of property name right marks the beginning of the return movement from personality to property. The name right has changed from the era when personality right is the only one in the world to the era when personality right and property right are both important.The nature of the right of name in modern society is not unitary, but dualistic.
