Social Sciences in China (Chinese Edition)

No.7, 2018

The Structure of Rights of Personal Identity and a Critique of Their Commercialization

(Abstract)

Fang Shaokun and Cao Xiangjian

The theory of the commercialization of personality rights targets identifying personality rights, but the latter has two contradictory powers and functions: the determination and alteration of personal identity (an internal attribute) and the use of personal identity (an external attribute), together with the characteristic stable relationship between personal identity and the agent. Historically, based on the combination of different targets of functions and rights, identifying personality rights have three different structures. Early legislation regarded personal identity’s use as its function and the identity itself as the object of rights, to the neglect of the freedom to form personal identity; the prevailing theory at present has added the powers of the determination and alteration of personality rights, but still regards personal identity as the object of rights, producing a contradiction in the nature of personality rights; and the ideal structure would regard the determination and alteration of personal identity as falling under powers and functions and freedom to form personal identity as the object ofrights, while excluding the use function of personal identity and eliminating the private law consequences of fraud and misappropriation of personal identity. The right to the use of personal identity derives from the promotional value of personality and is a special property right involving personal interests. The legislation should adopt a dual protection model that differs from American law, one that is supported by a standard system of personality rights.