Article 2 1 of the draft civil code discussed by the National People's Congress Standing Committee (NPCSC) stipulates the right of credit: "Natural persons and legal persons enjoy the right of credit. It is forbidden to infringe on the credit of natural persons and legal persons by defamation. " This right is not stipulated in the general principles of civil law.
What is credit?
Credit in modern Chinese includes two meanings: one is to appoint a person in good faith and trust his use, and the other is to keep his promise and practice it, so as to gain the trust of others. These two meanings are basically the same as those in ancient Chinese. Credit in modern Chinese also includes economic meaning, which is a special form of value movement.
The concept of using credit in legal sense comes from the second meaning of credit semantics, which refers to the corresponding trust and evaluation of the economic ability of civil subjects by society. Its basic characteristics, first, the subject of credit is all civil subjects. Secondly, the subjective factor of credit is the economic ability of the civil subject, including economic situation, production capacity, product quality, solvency, performance attitude, honesty and trustworthiness, etc. , and does not involve political attitude and general moral quality. Third, the objective factor of credit is the trust and evaluation of society, not its own evaluation. Fourth, credit is the combination of subjective ability and objective evaluation of civil subjects.
There are several representative views on the interpretation of credit in China's legal circles: (1) Credit is an economic evaluation corresponding to its economic ability in society; (Wang Liming) (2) Credit should refer to the trust of ordinary people in the self-economic evaluation of the parties, also known as credibility; (Zhang Junhao) (3) Credit refers to the corresponding trust and evaluation of the economic ability of civil subjects by the society. (Yang Lixin) The similarities are as follows: First, the main factors of credit generally refer to the general economic ability of civil subjects, including economic status, production capacity, product quality, solvency, performance attitude, honesty and trustworthiness, etc. Judging from its actual content, it is goodwill. (Shi Shangkuan) Second, the basic attribute of credit is classified as personality interest, not direct property interest. Credit can only be transformed into property interests in specific economic activities, or property consequences occur in tort damage.
Different views hold that credit is not a personality interest, but an intangible property, which is a social evaluation of the solvency of civil subjects, and is listed as commercial credit alongside goodwill and franchise qualification. The so-called commercial credit refers to the economic ability of civil subjects in commercial activities, such as business qualifications, business advantages, business reputation and so on. Under the condition of market economy, credit right has expanded from spiritual value to property value, and has become a new type of intangible property right which has both connections and differences with creative achievement right and identification mark right. Therefore, credit right is a credit interest protected by law, and it is an intangible property right different from ownership, creditor's rights, intellectual property rights and personal rights.
Thinking: Similarities and differences among credit, goodwill and reputation.
Different from goodwill, the subject of credit is not limited to businessmen, but all civil subjects including natural persons, legal persons and even the state; The source of credit is not necessarily a positive social evaluation, but an objective overall evaluation of the subject's solvency; The form of credit is not directly related to trademarks and commodities, and its carriers are mainly bills of exchange, letters of credit and credit certificates.
In the category of personality interests, credit once had the same personality attributes as reputation, and both credit and reputation belong to the category of spiritual interests. However, under the modern legal framework, credit has gradually changed from personal interests to property interests. Modern credit is often based on property, with property credit as its main purpose. Property factors, property values and property consequences in credit make the original content of personality interests relegate to a secondary position. Although both credit and reputation are social evaluations of civil subjects, the quality of credit and reputation is also inseparable. However, under the condition of market economy, while retaining some personality characteristics, modern credit is increasingly showing its important property significance.
Why should we stipulate the right of credit?
First of all, the developed market economy calls for credit right.
Second, China's credit concept has existed since ancient times.
The concept of credit right
Credit right is the personality right that civil subjects enjoy to maintain and maintain because of the corresponding trust and evaluation of their economic ability in society. Features: 1. The object of credit right is single, that is, credit, excluding other evaluation contents. Second, credit right includes two aspects: trust factor and social evaluation. On the one hand, credit is a social evaluation of economic ability, on the other hand, it is based on the trust of a real economic ability. Third, although the credit right is a kind of personality right, it is related to the evaluation of the subject's economic ability, so credit interests include both spiritual interests and property interests, that is, credit is transformed into property interests, which brings wealth to people.
Content of creditor's rights
Credit right includes the following contents:
The first is the credit tenure system. The basic content of credit right is the right to keep one's own credit. This is the right of the right subject to maintain the integrity of its credit evaluation. The parties can enhance their solvency through their own efforts, thus winning the trust of their counterparties and the public. Because of the exercise of tenure, firstly, the civil subject keeps his credit from being reduced or lost; Second, keep the credit image of civil subjects intact, and the public's trust is constantly enhanced;
The second is the right to maintain credit. This is the most important content of credit right, and it is for civil subjects to protect the fairness of their credit evaluation and eliminate the illegal infringement of others, so as to safeguard the fair evaluation and due trust of society. Civil subjects have the right to safeguard their own credit interests, ask others to make an objective and fair evaluation of their solvency, give due respect to their own credit, and have the obligation of inaction that may not infringe their credit rights; The civil subject has the right to exclude the illegal infringement of the credit right by others, that is, to request the judicial organ to impose civil sanctions on the infringer, to relieve their credit damage, and to maintain the objectivity and impartiality of their credit evaluation.
The third is the right to control credit interests. The right subject can control and use its creditor's rights and interests. For example, using one's own good credit can make the other party have confidence in their solvency, which is helpful to buy goods and borrow funds on credit, thus obtaining more and better property benefits.
Credit right protection
Since the implementation of the General Principles of the Civil Law, China has adopted indirect protection for the credit right, that is, it does not give separate protection, but recognizes the behavior that constitutes infringement of the credit right as infringement of the reputation right, and protects the credit right by protecting the reputation right. Article 14 of the Anti-Unfair Competition Law stipulates that "business operators shall not fabricate or spread false facts to damage the business reputation and commodity reputation of competitors", including the content of credit right. However, the independent status of credit right has not been established in theory and practice, and credit right is protected by the method of reputation right protection. Now, the draft civil code stipulates the right of credit and a series of specific contents for the protection of the right of credit, which meets the needs of the development of market economy. After the formal adoption of the Civil Code, the credit right will become an independent personality right.
There are two kinds of credit right protection:
The first is indirect protection. Most countries adopt this legislative example, that is, the act of infringing on credit is regarded as infringing on the right of goodwill, and the credit interests of the right subject are indirectly protected by law. The basic point of this legislation is to regard the act of defaming business reputation, including credit, as a special form of infringing on the reputation right of legal persons in the field of market operation. There are two characteristics. First, the so-called business reputation right is actually the reputation right in a broad sense, and the credit right is only an integral part of its rights. However, the obligee of business reputation is limited to commercial subjects, and ordinary civil subjects such as citizens or other legal persons cannot enjoy such rights; Second, the obligee and obligor must have a competitive relationship, or the victim and infringer must be competitors.
The second is direct protection. Some countries adopt the style of civil legislation to directly confirm the civil liability for infringement of credit rights. In other words, it is stipulated that the credit right is an independent civil right, and the legal consequences of violating this right are clear. The German Civil Code stipulates in Article 25 entitled "Torts" that there are all kinds of torts. Among them, Article 283 stipulates: "Whoever intentionally or negligently illegally infringes upon another person's life, body, health, freedom, ownership or other rights, shall be obligated to compensate others for the resulting damage". This paper holds that all kinds of legal interests (including credit) involved in the section of "Tort" are all forms of rights. Article 824 stipulates: "A person who advocates or disseminates facts that can damage the credit of others or cause other unfavorable facts to others' life or future, even if he doesn't know it, shall still compensate others for the damage caused by it". This clause protects the right of credit as an independent right, which is obviously different from the right of goodwill. The reasons are as follows: first, the subject of the right to enjoy credit benefits has no qualification restrictions, and all civil subjects can become the subject of credit rights; Second, the content of credit right is general credit interest, and there is no specific target direction, that is, it is not limited to business reputation; Third, there is no competitive relationship between the infringer and the victim. The purpose of his behavior is to hinder the other party's credit and cause adverse benefits to his livelihood or future, rather than destroying the other party's competitive strength and seeking illegitimate interests.
The above two forms of protection apply different legal provisions and have different legal consequences, which reflects the different legislative orientations of credit interest rights in various countries. We think it is appropriate to directly protect the credit right. At present, the application of China's competition law protects the credit right indirectly, which is not a complete credit right protection system. With the increasing status of credit activities in the market economy, it is necessary to confirm the independent status of credit right in civil legislation and safeguard the credit interests of civil subjects through direct protection.
In order to prevent the abuse of credit right, the law generally takes the following measures:
First, standardize credit activities. Credit activities should adhere to the principle of good faith, put an end to unreasonable expectations of "reasonable liabilities and favorable liabilities" and avoid credit crisis.
Second, implement credit instruments. Credit instrument is the carrier of the creditor-debtor relationship determined by the transferor and the trustee, among which the most representative credit instrument and payment instrument are bills. Billing credit activities helps to prevent informal credit forms such as "verbal agreement", "white note" or "account commitment".
Third, establish a credit evaluation system. Due to the crisis of credit relationship in current economic life, the credit consciousness of the whole society is very weak, so we should establish a credit evaluation system, including setting up credit evaluation institutions, formulating credit evaluation norms, and clarifying the legal responsibility of false credit. Provide relevant credit certificates for major credit activities. The credit evaluation of statutory evaluation agencies is not only the premise for the obligee to safeguard its legitimate interests, but also the basis for others to understand the credit status of the parties.
Infringement of credit right is a special tort. Referring to the provisions of relevant foreign legislation, this kind of behavior can be defined as: the behavior of damaging the credit of others by fabricating and spreading false facts. According to the theory of constitutive requirements of tort civil liability, the following issues should be considered when determining the infringement of credit right:
Constitutive elements and responsibilities of infringement of credit right
First, illegal behavior. The illegal act of infringing on the credit right is an act that damages the credit interests of others, and it is a false or improper statement of the special economic ability of the right subject (including its financial strength, redemption ability, settlement reputation, etc.). The manifestation of its illegal behavior, or a derogatory behavior, that is, fabricating or spreading false words out of thin air that are inconsistent with the true situation of others' credit; Or misleading behavior, that is, unfair and inaccurate statements of some objective facts have had an improper impact on the credit status of others. It is not difficult to see that the infringement of credit right is mainly an act, whether it is advocacy, fabrication, reporting or dissemination, it is the performance of the infringer's positive behavior. However, in some cases, the parties with specific behavioral obligations may also constitute infringement when they do not act. For example, when a credit rating company inquires about the credit status of relevant units or individuals on a specific subject according to law, the company has the obligation to reply and provide information, otherwise it may constitute omission infringement.
Second, damage the facts. The fact that the credit right is damaged is that the credit evaluation of the right subject is reduced because of the infringement, or the livelihood or future of the right subject is actually damaged because of other interests. The criterion for determining the damage fact is whether there is a credit damage result. This kind of damage is manifested in two aspects: first, the social evaluation of the special economic ability of the right subject is reduced because of infringement, such as the abnormal decline of credit rating and the unnatural damage of reputation; Second, for the special economic ability of the right subject, the public reduces or even loses the original economic trust, such as destroying customers' trust in a specific enterprise due to infringement. Damage fact refers to the damage fact about the decrease of social evaluation and economic trust, which often leads to the loss of property interests of the right subject, such as the inability to obtain expected loans and the inability to conduct normal commodity transactions. However, although the infringement of credit rights will lead to the harmful result of credit depreciation, it may not necessarily lead to actual property losses. In other words, the size of the property loss should be used as the basis for investigating the civil liability of the actor, but not as a necessary condition for determining the infringement of the credit right. In addition, the damage fact is about the loss of credit interest, which is limited to the property content and generally does not include mental damage.
Third, causality. Causality of infringement of credit right means that there is an inevitable internal relationship between the illegal act of infringing others' credit and the fact that credit interests are damaged. According to the method of logical analysis, as long as it is proved that credit interests are caused by illegal acts, it can be confirmed that there is a causal relationship between them.
Fourth, subjective fault. The subjective fault of infringing the credit right refers to the subjective state of the infringer when he commits a legally reprehensible act, and its manifestations include intention and negligence. Infringement of credit right is different from infringement of goodwill right. The latter occurs between operators with competitive relations, and its behavior has obvious purpose of damaging the goodwill of opponents. Legislation requires intentional infringement.
Infringement of credit right should bear corresponding civil liability, the main way is to compensate for losses, and it also includes the forms of responsibility to stop the infringement, eliminate the influence, apologize and so on. However, under the following circumstances, the actor may raise a defense that does not constitute infringement or exempt from tort liability:
1. Proper reflection. For example, legitimate complaints from consumers.
The news report is true. News organizations' reports on the credit situation of specific subjects cannot be regarded as infringement as long as the contents are basically true.
3. Authoritative sources. Credit evaluation institutions established according to law collect information about the characteristics, solvency, responsibility and reputation of individuals or enterprises according to the prescribed credit rating system, provide credit reports to the parties involved in investment and trading activities, and publish credit ratings or grades. , such as the negative evaluation involving the credit of a specific subject, can be used as a defense to deny the civil liability for infringement of the right to use.
Reading Notes on Personal Rights: The Reference Significance of the New Development of Personal Rights to China's Civil Legislation
Fourthly, the new development of personality right can be used for reference to China's civil legislation.
The General Principles of Civil Law of People's Republic of China (PRC) promulgated by 1986 (hereinafter referred to as the General Principles of Civil Law) attaches great importance to the protection of personality rights. It not only regards "personal rights" as an independent section, but also clearly stipulates various personality rights of citizens and legal persons, such as name rights, name rights, reputation rights, portrait rights and so on. This attitude of respecting and protecting personality rights has made the General Principles of Civil Law win the reputation of "China Declaration of Human Rights" overseas. Due to the limitation of historical conditions, the system of personality right in General Principles of Civil Law is not satisfactory after all.
The perfection of the personality right system in China's civil code should start from the following aspects:
1. The personality right system should be compiled independently in the Civil Code.
There is no independent personality right in the civil code of traditional civil law countries and regions, which is flawed in itself. From the perspective of civil law right system, personality right should occupy an important position in it. The independent compilation of personality right will not cause disharmony of the original system, on the contrary, it is a complete development of the original system. The concrete system of civil code is constructed according to the structure of civil rights. Confirming personality right as an independent right is actually to construct the whole civil code system according to the right system. It can be said that the independent compilation of personality rights not only inherits the existing right system, but also develops it appropriately. It is particularly important to note that the independent compilation of personality rights is a summary of valuable experience in China's civil legislation. "General Principles of the Civil Law" stipulates personal rights side by side with property rights, creditor's rights and intellectual property rights, which is unprecedented in civil legislation in various countries. This system itself means that China's civil legislation juxtaposes the personality right system with other legal systems, thus providing an excellent legislative precedent for the independent compilation of the personality right law in the civil code.
2. The civil code should stipulate the general personality right system.
As mentioned above, with the development of modern science and technology economy and the promotion of human rights concept, it is necessary to bring all kinds of new personality interests into the civil law field of vision in time, which determines that the personality right law should be an open system. Judging from the provisions of China's current civil legislation, the general principles of the civil law stipulate the specific personality rights of citizens and legal persons by enumerating various specific personality rights, but there is no provision on the general personality rights. On the one hand, it strictly limits the scope of specific personality rights, thus making the personality rights system a closed system, making it difficult for some new personality interests or personality interests that are not exactly the same as various specific personality rights to obtain legal protection; On the other hand, only the specific personality right system without the general personality right system is incomplete in system, and it is difficult to achieve the purpose of protecting the specific personality right.
Because of this, it is very necessary to establish the general personality right system in civil law and promote the perfection of the personality right system. The establishment of general personality right is conducive to the comprehensive protection of the general personality interests of natural persons and legal persons. The general personality right has the nature of general clauses, and the provisions of the law on the general personality right will become comprehensive clauses, which will protect various personality interests and have strong inclusiveness. This can provide a legal basis for the court to deal with all kinds of new personality rights disputes and make the personality rights system an open system.
3. Further improve the system of the right to life and health
The General Principles of Civil Law clearly stipulates in the "Personal Rights" section of Chapter V "Civil Rights": "Citizens have the right to life and health." Thus, the right to life occupies the primary position among all personality rights. In addition, many separate laws also provide for the protection of the right to life. Since life is the highest legal interest, the right to life should be defined as the primary personality right and the primary civil right in the design of specific personality rights. Only by confirming the right to life can we build a complete civil rights system. In terms of the right to life, the law should make the following key provisions: (1) Clarify the nature of the highest legal interest of life, and confirm that the right to life takes precedence over other civil rights, which is the rule to solve the conflict of rights. (2) stipulate the right of claim for compensation of the close relatives of the deceased. After the right to life is infringed, the victim can't ask for relief in person because of death, but in law, the close relatives of the deceased can naturally enjoy the right to claim compensation based on the infringement of the victim's right to life, which reasonably explains the basis for the close relatives of the deceased to enjoy the right to claim compensation. In other words, the claim of the close relatives of the deceased is an inevitable extension of the legal protection of the natural person's right to life, and to confirm the claim of the close relatives of the deceased, we must first recognize the right to life enjoyed by the direct victim. (3) Clarify the obligations and responsibilities of relevant institutions and individuals. (4) Problems involving bioethics, euthanasia, drug experiments, life reproduction, birth control and many other fields are all solved in law. (5) Solve the problem of compensation for mental damage that infringes on the right to life.
4. Clearly define the right to privacy
The General Principles of Civil Law does not stipulate the right to privacy. The Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (Trial) stipulates in Article 140 that the right of privacy is subordinate to the right of reputation, and the protection of the right of privacy is included in the protection scope of the right of reputation. However, this indirect protection mode is not enough for the obligee. Because there are many differences between reputation right and privacy right, this analogy is not suitable, so it is necessary to stipulate an independent privacy system in our civil code.
In the content of privacy, we should not only protect the secret of private life, but also further expand the connotation of privacy. Specifically, the following provisions should be made: (1) stipulate the peace of private life, including the peace of life, the privacy of private space, the autonomy of private activities, and prohibiting others from illegally peeping, monitoring, tracking and harassing. (2) Make special provisions on residential privacy, and explicitly prohibit anyone from illegally breaking into other people's houses without authorization. (3) Protect personal privacy and prohibit illegal exposure of others' personal privacy. (4) Further expand the protection scope of personal life secrets, such as personal property privacy, family privacy, genetic privacy, experience privacy, and even conversation privacy, and shall not be disclosed without permission. (five) to protect personal communication secrets and prohibit others from illegally listening to or intercepting other people's letters, emails, telephones and telegrams. Of course, the content, protection, object scope and the responsibility of infringing on the right to privacy need to be confirmed in the future civil code.
5. Clearly define creditor's rights
Credit right refers to the personality right that civil subjects enjoy and control their credit interests. Credit is an evaluation of the economic ability of civil subjects, including economic status, production capacity, product quality, debt performance ability and so on. Although credit has a strong property attribute, it still embodies certain personality interests and should be stipulated in the personality right law. Establishing the credit right is the basis of perfecting the credit legal system and plays a positive role in strengthening the credit needed by the market economy. More importantly, the establishment of credit right is helpful to the perfection of credit system. This is because, on the one hand, an important purpose of the credit information system is to maintain credit, but only after the credit right is stipulated can the foundation of the credit information system be established; On the other hand, the collection of credit information may have an important impact on the credit of social subjects. If the information of credit investigation helps to improve someone's credit rating, it will make him have a higher reputation; And if its credit is low, its credit right will also be affected. The authenticity of information also directly affects the correct evaluation of the economic ability of the parties, that is, the credit status. It can be seen that the confirmation of credit right is the legal basis for establishing credit system. In China, although the current legislation does not stipulate the credit right as an independent right, many laws and regulations involve the protection of the credit right.
Article 2 1-24 of China People's Law and State Law (Draft) submitted by NPC Law Committee to the National People's Congress for deliberation in 2002 clearly stipulates the credit right and defines it as personality right, which reflects the development of China's credit legal system.
6. Establish rules to solve conflicts between personality rights and other civil rights.
The conflict of personality right includes internal conflict and external conflict: internal conflict refers to the conflict in the exercise of personality right, while external conflict refers to the conflict between the exercise of personality right and other civil rights and public law rights. For example, since the birth of news, there have been conflicts between freedom of the press and protection of human rights, social knowledge and personal privacy, and personal standard and social standard to varying degrees. On the surface, the conflict of rights is the intersection of the boundaries of the exercise of rights, but behind the conflict of rights is the question of whether to restrict or strengthen the protection of certain rights. In the case of conflict, certain civil disputes often occur, so the conflict of rights is often accompanied by the determination of responsibilities. If we want to strengthen the protection of a right, we will often face the problem of protecting one party from taking responsibility or letting the other party take responsibility. For example, there is a conflict between the exercise of privacy and the right to supervise public opinion. If we want to strengthen the protection of the right to supervise public opinion, then we must limit the right to privacy and may exempt some minor infringements. When solving the conflict of rights, we should learn from foreign experience, strengthen the protection of public opinion supervision, and appropriately limit the personality rights of public figures.
7. Further improve the protection of personality rights under the network environment.
With the development of the Internet, the personality right under the network environment presents new characteristics. This is mainly manifested in the following aspects: (1) Personal personality right under the network environment has some characteristics different from those in real life. For example, a person's name and position do not belong to privacy in real life, but may become important privacy in the network environment, and the discloser will bear the corresponding tort liability. (2) Personal privacy is more vulnerable to infringement, and the consequences of infringement are more serious, because it is easier to store, process and disseminate personal information through the Internet. Once some infringing information, such as libel, is released to the whole world at the same time, it may be stored by powerful search engines and downloaded countless times, causing thousands of netizens to pay attention to and comment on libel, and the damage caused is difficult to eliminate in time.
8. Further improve the commercialization system of personality rights.
Personality right is a kind of spiritual right in essence, but it is more and more characteristic of property right in market economy society. China's legislation should confirm the commercialization of personality right. This is embodied in the following aspects: (1) Allow the obligee to make commercial use of the personality right with property value or allow others to make commercial use through contracts and get paid. (2) After the commercial personality right is infringed, it is allowed to protect the property interests through tort damages. For example, when handling cases related to portrait rights, we should distinguish between mental damage and property damage caused by infringement of others' portrait rights and calculate them separately. Since the portrait is used commercially, the commercial value of the portrait should be calculated, and the loss that should be compensated should be calculated based on the defendant's profit. This kind of loss should be separated from mental damage. If it is already a commercial right and can obtain certain economic benefits, it should compensate for the damage; If it is not the right of commercialization, it should compensate for mental damage. (3) When protecting some personality interests, we should consider whether the actor commercializes the personality interests of the obligee. For example, if the actor uses the names and portraits of others without the permission of the obligee, it should constitute infringement if it is for profit, but if it is not used for commercial purposes, or the actor himself does not use it maliciously, such as hanging his portrait in the bedroom out of respect for someone, it does not necessarily constitute infringement. For another example, imitating the unique voice, demeanor and manners of celebrities may not constitute infringement if it is not used for commercial performances, but only for personal interests. Therefore, when determining whether imitation shows constitute infringement, we should consider whether these personality interests are applied to commercial purposes. (4) it is clearly stipulated that the act of using the personality interests of the deceased to seek commercial interests without permission should generally be recognized as infringement. The personality mark of the deceased should also be fully protected and should not be illegally violated.