The principle of imputation is the core of determining the establishment and attribution of responsibility, and its solution is to determine the attribution of responsibility according to what factual state. [3] The principle of fault liability takes fault as the final element of imputation, and also takes fault as an important basis for determining the scope of the actor's responsibility. The subjective fault theory of free will theory assumes that every rational person has free will, and his behavior depends on his will. Everyone is only responsible for his own will, and there is no responsibility without meaning. As the German jurist Yelin said, "The person who makes people responsible is not for damage, but for negligence, just as the person who makes candles shine is not for fire, but for oxygen." A person should be responsible for the damage caused by his own fault, which is almost a natural law and a basic requirement of justice. Therefore, the establishment of the principle of fault liability is one of the signs of the progress of legal civilization and a "rational victory". [4] Although there is a view that no-fault liability should be applied to infringement of privacy, the fault of the actor is not an important element. [5] However, the author believes that infringement of privacy should belong to general infringement and the principle of fault liability should be applied. In this kind of tort, only the objects of infringement are different, and there is no highly dangerous behavior and responsibility transfer, so the theory of no-fault liability such as retribution and danger cannot be applied to impute it.
The imputation basis of infringement of privacy determines its constitutive requirements. According to the traditional civil law, the constitutive elements of tort mainly include: responsibility, subjective fault, illegality of behavior, infringed object, causality and damage fact. [6] This simplifies the general theory of the four elements of China's tort law (subjective fault, illegal behavior, causality, damage facts). Specifically, the constitutive elements of infringement of privacy are:
(1) failure
The so-called fault is a flaw in the will of the actor when he commits an illegal act, including intentional and negligent, which shows that he has violated moral obligations, so he should be condemned without regret. The fault, as a pure inner state, can't be grasped by the judge, which undoubtedly increases the burden of proof of the victim, and it is also easy to exempt the offender from liability and unfair. The theory of objective fault came into being, and subjective fault was regarded as the improper legal influence of classical philosophy of free will. According to the objective fault theory, fault is not a factual judgment of inner state, but a value judgment of lack of behavior. "Fault is not a matter of fact, but a legal issue. The court's determination of fault is not to reveal the state of fault to people. Instead, the court evaluates certain established facts. In addition to the law, there are political and ethical factors, sometimes just to share the damage results fairly. " [7]
(2) Illegality
Regarding the existence of illegal elements and their relationship with fault elements, the author thinks that the illegal elements of German tort law are based on subjective fault theory. In the French legal system and the Anglo-American legal system, the objective illegality has been included in the objective fault because of the adoption of the theory of objective fault and the theory of three elements of infringement, so there is no relationship between fault and illegality. Due to the rise of objective fault theory, the foundation of subjective fault is increasingly shaken. In the judgment of so-called illegality, it is not limited to the obligations stipulated by statute law. Any behavior that violates public order and good customs, "society * * * regulates life", violates the principle of honesty and credit, and abuses rights can all constitute violations of the law. Austrian civil law explains illegality as "illegality refers to any state that should not be so according to law, so it should be prohibited." It can be explicit or flexible, and this prohibition must be legal, that is, it is expressly stipulated by law; Either according to custom or according to jurisprudence. "[8] The expansion of illegality makes it overlap with the behavior standards of ordinary people to a great extent in objective faults. The objectification of fault and the expansion of illegality make it close to integration. The unification of the elements of guilt and illegality aims to show that the actor's behavior violates the duty of care and code of conduct of social "standard people" and infringes on the interests that should be protected by law, so he should be liable for compensation. As for the determination of the specific code of conduct and the scope of the object, it should be determined by the judge's discretion, according to the specific situation, based on social common sense and what scholars call "legal feelings", so as to make the abstract general tort clause concrete and applicable.
(3) Causality
Causality is of great significance in damage compensation law, which often determines whether the liability for compensation is established and the scope of compensation. The world is generally connected, and the so-called causality refers to the relationship between the causes of objective phenomena that have appeared one after another, with the first cause causing a certain phenomenon as the cause and the phenomenon caused by a certain phenomenon as the result. This relationship between causing and being caused is the original meaning of causality. [9] Legal causality and philosophical causality are different in purpose, function and judgment standard, and cannot be confused. In China, the theory of inevitable causality, which originated from the former Soviet Union, equates philosophical causality with legal causality, and holds that causality is an inevitable and regular connection between behavior and damage. This view has been abandoned by Chinese scholars.
The traditional theory of Anglo-American law divides causality into "factual causality" and "legal causality". This is determined by the trial mode of jury participation in common law system and common law system. In fact, causality is called "actual cause", which refers to the relationship between the cause of damage and the result of damage. In fact, the determination of causality is a matter of fact and should be determined by the jury. In fact, the significance of causality lies in determining the role of the injurious act in the process of causing damage, and then determining the responsibility of the actor. The judgment of factual causality adopts conditional theory, that is, the "but for" test formula of "if there is no such behavior, there is no such damage" is applied. However, not all factual causes can be used as legal causes of damage, so it is necessary to identify legal causality. Legal causality is called "proximate cause" or "legal cause", which means that it has legal significance and can determine the scope of compensation. The legal causality is decided by the judge, which is not a purely factual issue, but belongs to the category of legal policy. There are many theories about its judgment criteria, including equivalence theory, direct result theory, predictability theory, sufficient cause theory, inevitable causality theory, danger theory and legal purpose theory. [10] In Anglo-American law, the mainstream theory is the "foreseeability" theory, that is, whether the actor can foresee the occurrence of damage determines the scope of damages.
The traditional theory of continental law divides causality into causality of liability establishment and causality of liability scope. This is closely related to the constitutive requirements of tort in civil law system. Civil law distinguishes between "infringement" and "damage", so the causality between illegal behavior and "infringement" is defined as the causality of liability establishment, while the causality between "damage" and "infringement" is defined as the causality of liability scope. [1 1] The former is a factual problem, which belongs to the constitutive requirements of responsibility, aiming at solving the problem of the establishment of responsibility, and taking the conditional theory as the general theory; The latter is not only a technical causal relationship, but also a legal policy tool, which is the legal value judgment of the principle of imputation of tort liability. [12] aims to solve the problem of the scope of responsibility, taking the theory of equivalence as the general theory.
It can be seen that both continental law and common law adopt "dichotomy" to grasp the causal relationship. In tort, breach of contract and other civil liabilities, the latter is often concerned, that is, the causal relationship that legally determines the scope of damages. This is because the concept of damage stipulated by law is too abstract. In order to prevent causality and the scope of damage from expanding indefinitely, the task of concrete damage compensation can only be realized through the scope of legal causality or liability causality. Our country belongs to the civil law system, so we should adopt the theory of considerable causality when determining the scope of damage compensation, that is, "without this kind of behavior, this kind of damage will not happen;" This behavior is usually enough to cause such damage, and there is a causal relationship. There is no such behavior, although there will be no such damage; If you have this kind of behavior, there is usually no such damage, that is, there is no causal relationship. " [ 13]
(4) Damage to facts
Damage, as a factual state, refers to the fact that the rights and interests of people protected by tort law are affected by some unfavorable interests because of some behavior or event. [14] Chinese scholars generally believe that the damage fact is certain, the damage has occurred, and the damage must exist in reality. The concept of damage has a theoretical dispute between interest theory (difference theory) and organization theory. The interest theory is abstract. The German scholar Munson thinks that damage is the interest that the victim suffered because of a specific damage accident, and this interest, according to what he said, is the difference between the victim's overall property status and the occurrence of damage accidents and non-damage accidents. According to the organization theory founded by altman, damage is the adverse interest that the legal subject suffers because the components of his property are deprived or destroyed or his body is hurt. [15] Both have their own advantages and disadvantages, but both are limited to property losses. In the act of infringing on privacy, it has no substantive significance, because the infringement of privacy mainly occurs mental pain such as humiliation, distress and anxiety, and the damage cannot be expressed in the form of interest differences, property damage or personal injury. Generally speaking, in the case of illegally obtaining and revealing personal privacy, mental damage is often the inevitable result of this behavior. Because the privacy holder's concealment and seclusion can be presumed to be very worried about personal privacy being violated, and the actual violation turns this fear into real pain. Therefore, the so-called liability causality can only be established if the causal relationship between the infringement of privacy and the infringement of privacy is actually recognized. For example, according to the French precedent, the precedent seems to deviate from Article 1382, but according to Article 9 of the Civil Code, only proof of invasion of private life is required, and no actual damage is required. [ 16]
Second, the forms and types of invasion of privacy
The right to privacy is universally recognized by all countries, but its specific scope and protection mode are not customized because of its extremely vague connotation. In the American academic circles that advocate the right to privacy, there are two theoretical disputes about the definition of this new right: Professor prosser's "decentralized right to privacy" and Professor Brostin's "unified right to privacy". [17] under the framework of civil law system, we need to sort out the types of privacy with specific cases while protecting privacy with general rules of tort law. Typing, in short, is classification. Human thinking grasps the real world from the classification of the real world, so German jurist Arthur Kaufman emphasized that "thinking about the essence of things is a typological thinking". Gray said: "The task of analytical law is classification, including definition. Whoever can classify the law perfectly will get perfect knowledge about the law. " [18] Typing can make up for the lack of abstraction of legal concepts. For example, Larenz thinks that when the abstract general concept and its logical system are not enough to grasp the various forms of expression of a certain life phenomenon or meaning context, the auxiliary thinking form that everyone will first think of is "type", and the German civil law is characterized by the unique situation in which abstract concepts and types coexist. [19] In the process of systematic integration of invasion of privacy, we can learn from the experience accumulated in inductive thinking in Anglo-American law and properly incorporate typological methods, which can effectively overcome the rigidity and closeness of systematization.
As far as typology of invasion of privacy is concerned, it can be roughly divided into two categories: inaction and action. The former is "doing what you didn't do" and the latter is "doing what you didn't do". The specific forms of infringement are as follows:
(A) omission infringement
Infringement of privacy generally exists in the form of positive actions, but under special circumstances, inaction will also constitute infringement of privacy. Infringement by omission must be based on the actor's obligation to act. The so-called legal obligation of conduct not only refers to those who are expressly stipulated in the law, but also includes those who have the obligation to act in accordance with public order and good customs and the purpose and spirit of the whole law. Generally speaking, it includes: (1) the obligation to act according to the law; (2) Behavior obligation based on service relationship; (3) Behavioral obligations based on contractual relationship; (4) Have the obligation to prevent the danger caused by their first behavior; (5) Have the opportunity to prevent danger, and have the obligation to prevent danger according to the concept of public order and good customs. [20]
Specific cases of omission invading privacy mainly include: the media should fulfill the obligation of censorship for reports involving privacy, but failed to do so; Personal data collection agencies keep wrong personal data and fail to correct them in time; Failing to fulfill the obligation of informing or informing when collecting personal data; Keep other people's data, and the data is lost or stolen without taking necessary security measures. For example, the electronic data stored by the archives management department is stolen and distributed by hackers without taking necessary security measures.
(2) regarded as infringement
invade
Unauthorized intrusion into other people's private space, undermining the peace of life of others. The occupied space includes not only the owner's property, but also the houses, hotels and even private mailboxes, e-mails and computer hard disk spaces rented or borrowed by the owner. This kind of invasion includes not only physical contact and physical entry, but also the invasion of invisible eyes, information, radio waves and noise, which constitutes a generalized invasion, such as repeated telephone interviews, short message sending, spam transmission, overlooking other people's houses with binoculars, etc. The famous case of "Yan 'an couple watching porn" is a typical case of property infringement.
harass
Harassment is the invasion of others' private life and peace by means other than intrusion, such as stalking, following others, stalking outside others' houses, etc. Another example is the increasingly serious sexual harassment problem in modern times. The term "sexual harassment" was first put forward by American scholar Catherine McKinnon in the 1970s. It points out that sexual harassment refers to the behavior of making unwelcome sex-related words, demands or behaviors against women in the workplace, schools, hospitals or other public places through bullying, intimidation and control. [2 1] It is manifested in verbal teasing, graphic display, eye contact and posture, physical contact, sexual organ exposure, etc., which molests, insults or molests women with words or actions. Sexual harassment will cause serious harm to the private interests of the victims, such as personal peace, physical, psychological and emotional. [22]
3. Peeping and filming
Illegally peeping into other people's private lives, or photographing or recording other people's private lives without authorization. For example, in real life, the "Qumeifeng CD" incident, which once caused a lot of uproar; A company in Shenzhen installed cameras in toilets to monitor employees; A middle school in Shanghai installed a camera to shoot a pair of puppy love students hugging and kissing in the classroom, and broadcast it on the school TV station.
4. Eavesdropping and interception
This is an invasion of others' communication secrets and privacy. Eavesdropping and recording are violations of other people's discourse communication; Monitoring information refers to telegrams, faxes, letters, postal parcels, emails, etc. , intercepted, detained and opened during transmission. The eavesdropping and interception of other people's information exchange process regulates the improper acquisition of information, rather than paying attention to the result of knowing the information. Even if the eavesdropped or intercepted information is actually unknown, it constitutes an infringement of privacy.
Step 5 Reconnaissance and investigation
Illegally spying and investigating other people's personal experiences, whereabouts, communications, property status, family life, etc. For example, reading other people's diaries and records privately.
6. Search and test
Unlawful search of another person's body, property or residence; Illegally forcing others to take fingerprints, blood tests, alcohol tests, genetic tests, health tests, etc. In addition, it is also controversial whether checking and analyzing the garbage discarded by others constitutes an invasion of privacy. In the case of Colorado v Hillman, according to the theory of reasonable expectation of privacy, the court held that the police did not need permission when searching garbage, because the garbage maker no longer had reasonable expectation of privacy related to his garbage. But most countries' privacy laws prohibit this kind of behavior. The author thinks that although the chattel has been abandoned by the owner, it contains traces of other people's private information, and deliberately extracting this information in an improper way should constitute infringement.
7. Openness and communication
Unauthorized disclosure of other people's marriage history, medical history, victimization experience and other private information. To a third person, or to spread the range of known groups, whether orally or in writing, or through modern communication technologies such as mobile phone short messages, the Internet, and other ways that are enough to make the third person know, all constitute infringement of privacy.
8. Improper collection of personal data
The collection, storage and use of personal data involving the privacy of natural persons, such as identity, address and credit, must obtain their consent. In case of death or loss of capacity for civil conduct, the consent of his near relatives must be obtained. This is determined by the principle that personal data belongs to the generating subject. Personal data must be collected in a legal and fair manner, and the authenticity of the collected data should be guaranteed. When collecting, reasonable measures shall be taken to inform the parties whether they have the obligation to provide information; The purpose of collecting this information; The scope of possible transfer and disclosure of information; Their right to consult and modify information. Moreover, without the consent of the data subject, the use of data shall not exceed the scope stipulated by the original collection purpose, otherwise it is improper personal data collection and an invasion of others' privacy.
9. Violation of confidentiality obligations
Doctors, lawyers, accountants, appraisers and other experts who provide specific professional services to the public should have a high degree of diligence and loyalty to calculate for each other. If they know other people's privacy based on their professional relationship, they should have the obligation of confidentiality and should not illegally use and disclose other people's privacy. For example, Article 24 of Ethiopia's Civil Code: "(1) Anyone who discloses the facts learned by his occupation will betray or may betray the trust entrusted to him by a third person precisely because of his occupation, and shall not be forced to disclose the relevant facts. (2) Those who have confided or disclosed these facts can rest assured that they will not be leaked by people they trust. "
10. distorted reports
The obligee may be accused of a false fact related to himself, that is, the fact does not constitute an infringement on his personal interests such as his reputation and private secrets, but this untrue relationship may put others in a position of being misunderstood by the public and infringe on the peace and freedom of his private life. That is, the "false light" summarized by Professor prosser in 1960 and incorporated into the American Restatement of Tort Law (the second time): the disclosure of incorrect or untrue information makes the parties suffer pity, ridicule or contempt from others, causing physical and mental harm. For example, in the case of Leverton v. Curtis Publishing Co in 195 1, a newspaper illustrated a photo of a child who was hit by a motorcycle in the street, but the title was "They killed themselves", which made the child be regarded as a careless pedestrian. Article 8 1 of the Civil Code of the Macao Special Administrative Region stipulates: "Everyone has the right to be protected from being accused by others that a false fact is related to himself or his life, even if it does not infringe on his reputation and other people's perception of him or involve his private life."
1 1. Interference in independent decision-making.
Through fraud, coercion, etc. Against the will of the obligee, illegally interfering with others' freedom of private life such as contraception, abortion, childbearing, transsexuality and sexual orientation. , but also constitutes an infringement of the privacy of others.
Third, review the current situation of privacy protection in China.
Since the founding of the People's Republic of China, due to historical reasons, the drafting of the Civil Code has been frustrated repeatedly, and private rights have been suppressed for a long time, let alone privacy. Until the reform and opening up, the research on privacy and even personality rights in China was still relatively weak compared with the property law. According to scholars' research, "Searching the National Index of Law Articles 1985- 1987 edited by the Law Department of Guangdong Sun Yat-sen University, we can find that in the past two years, China law circles have not published an article on defamation law, reputation right and privacy right closely related to reputation right." [23] In the legislative practice, China lacks a unified privacy system, which is scattered in various separate laws, such as the Procedural Law, supplemented by judicial interpretation and other laws and regulations.
1986 China's General Principles of Civil Law only stipulates the right to life and health, the right to name, the right to portrait, the right to reputation and the right to honor, but does not stipulate the right to privacy, which is undoubtedly an omission in legislation. 1988 the Supreme People's Court adopted the indirect protection method in the Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law, stipulating that infringement of others' privacy and damage to the right of reputation shall be deemed as infringement of the right of reputation and civil liability shall be investigated. The Supreme People's Court's Answers to Several Questions on the Trial of Reputation Right Cases also stipulates: "If you publish other people's privacy materials or disclose other people's privacy in written or oral form without other people's consent, causing damage to others' reputation, it shall be treated as infringement of others' reputation right. "In other words, privacy equals privacy, and the right of reputation covers privacy to provide relief. This model is not perfect. The right of reputation is the right of a specific person to ask others to make an objective and fair evaluation, and to exclude others from belittling their reputation. The difference between privacy and reputation is as follows:
First, the subjects of rights are different. The subject of privacy right can only be a natural person. Generally speaking, legal person is not the subject of privacy. Legal persons can enjoy the right of reputation.
Second, the objects of protection are different. The right of reputation protects the individual's social evaluation, while reputation depends on the public's cognition and evaluation. The right of reputation is the right of individuals not to be distorted and derogated. Privacy is a personal life field that has nothing to do with the public sphere, and the right to privacy is the right of individuals to be free from interference and publicity.
Second, there are different ways of infringement. Infringement of reputation rights is characterized by spreading false facts, and its infringement methods are mainly slander and insult; Infringement of privacy reveals true and objective information, not fabrication. The main ways of infringement are to disclose the privacy of the obligee without the consent of the obligee, or to harass or interfere with the private life of others.
Third, the forms of responsibility are different. There are generally five forms of responsibility for infringing on the right of reputation: stopping the infringement, restoring the reputation, eliminating the influence, apologizing and compensating for the losses. In mass communication activities, restoring reputation and eliminating influence mainly take the form of issuing a statement to correct it; However, once privacy is made public, it cannot be redeemed. Therefore, it is impossible to make the offender bear the responsibility by restoring his reputation and eliminating the influence. The main responsibility should be to stop the infringement, apologize and compensate for the losses.
Fourth, the reasons for exemption are different. In addition to public interests and public figures with common interests, the main exemption reasons for infringing the right of reputation are truthful reporting and fair comments; However, invasion of privacy cannot exempt truthful reports and fair comments, because privacy disclosure constitutes infringement, and whether the content is true or not does not matter. The main reasons for exemption are the right to know and the legitimate public interest.
Fifth, the specificity is different. The right of reputation shall not be disposed of or abandoned at will; The parties to the right to privacy can dispose of it within certain limits, voluntarily disclose it or allow others to disclose it.
Sixth, the infringement motives are different. Defamation and insult are the main ways to infringe on the right of reputation, and the actor is often intentional subjectively, and his motivation means hurting others; Invasion of privacy may often be well-intentioned and not necessarily malicious. For example, in 1992, the case of Yang Mo v. Wang Zhaogan's reputation infringement caused a sensation. The dispute originated from Wang's article "Visit Yang Mo Again" published under the pseudonym of "Oriental Laughter" in Knowledge and Life. During the trial, the author himself repeatedly stressed that "Yang Mo has been admired since primary school ... He wrote this article to praise Yang Mo, a literary elder." [24]
Seventh, the consequences of infringement are different. Infringement on the right of reputation will lead to the reduction of objective social evaluation. The consequences of invading privacy may not damage the reputation of the parties, mainly my feelings and psychology. [25]
On March 8th, 20001year, the Supreme People's Court promulgated the Interpretation on Several Issues about Determining the Liability for Compensation for Spiritual Damage in Civil Tort, which abandoned the traditional mode of protecting privacy by reputation. With regard to the protection of privacy, it is stipulated that: "If the victim infringes on public interests, social morality infringes on the privacy of others or other personal interests, and the victim brings a lawsuit for compensation for mental damage to the people's court on the grounds of infringement, the people's court shall accept it according to law." This "explanation" distinguishes the right to privacy and the right to reputation, which is undoubtedly of progressive significance. However, in essence, privacy is still not recognized as an independent right in private law, but regarded as a general legal interest, and only when it infringes on public interests and social morality can it be relieved. The implication is that as long as it doesn't violate public interests and social morality, the invasion of privacy can be unscrupulous. This is a blatant disregard for personal privacy under the banner of public interest and social morality, which constitutes an improper restriction on privacy. As far as its origin is concerned, this clause draws lessons from the tort of "violation of custom" in Article 826 of the German Civil Code, and Germany has actually protected the right to privacy through the general tort of Article 823 1. Therefore, the right to privacy is an independent right type, and the general tort of negligence can constitute infringement. Adding a so-called "hat" that goes against the public interest and social morality is a snake and a scorpion.