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Where the following moral right of a natural person being infringed upon illegally, he may file a compensation claim to the people’s court for mental damage and the people’s court shall accept it according to law:
(1) right of life, right of health, right of health protection; and,
(2) right of name, right of portrait, right of reputation, right of honor; and,
(3) right of personality, right of personal freedom.
Where a case violating of public interests, social ethics and infringing upon other person’s privacy and personality interests and is filed by the victim for compensation of mental injury under the cause of tort, the people’s court shall accept it.6
The rights listed in (1) are usually known, in theoretically, as material moral right and are the existing premise and the material basis for spiritual rights of personality displayed in (2). Any infringement upon the moral right with material nature often leads to tremendous and irreversible mental trauma, which is usually difficult to remedy, for example, the death of life and disability of body. Currently, in some laws and regulations such as the Law on the Protection of Consumer Rights and Interests 7 and the Measures on Handling of Traffic Accident 8 issued by the State Council in 1992, there have been such remedial provisions with respect to the infringed moral right. These two laws provide that in the case of bodily injury, causing death or disability, compensatory payment for death or disability should be paid to the victims. This kind of compensatory payment has, in a sense, the nature of soothing money. But it is not applicable under any circumstance only be applied in some specified scope provided by laws and regulations, and therefore it is not enough and perfect for protecting the moral right. The interpretation brought about the enlargement of mental damage sphere from “spiritual moral right” to “material moral right”, which is an important progress in judicial protection of moral right.
Additionally, the interpretation also extends the concept of moral right by providing the right of health protection as an independent right and puts it under judicial protection, which puts all types of injurious acts against right of life and health, such as compelled tattooing or drawing blood, cutting off one’s hair stealthily, etc. under the sanction of law.
2. Interests of personality.
The General Principles of the Civil Law provides in article 5 that the lawful civil rights and interests of citizens and legal persons shall be protected by law; no organization or individual may infringe upon them. Civil rights and interests include two aspects: rights and interests. In judicial practice, any act infringing upon the legal civil rights of citizens is defined directly by courts as civil trespass. However, when a lawful interest is injured, it often receives judicial protection through an indirect manner. For instance, the judicial protection to privacy. In China, the privacy has not been defined directly as an independent civil rights under the current civil laws, but is protected as a part of right of fame by relevant judicial interpretations issued by the Supreme People’s Court.
The Constitution provides that the freedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law.9 And the Civil Procedure Law also prescribes that civil cases shall be tried in public, except for those that involve State secrets or personal privacy or are to be tried otherwise as provided by the law.10 These provisions show that the privacy are protected by law in China. But protection of public law cannot replace the protection of private law. Only bringing the privacy into the protected sphere of civil law and making it an independent moral rights can it be protected sufficiently. Seeing that there has not been legislative basis on defining privacy as a civil right, so the interpretation, making reference to the legislative experiences of other countries and regions, brings those tortious actions infringing upon the privacy into the category of contravening “public order or good morals”. Since there has not been the wording of “public order or good morals” in current law, the interpretation, according to article 7 of the General Principles of the Civil Law which stipulates that civil activities shall have respect for social ethics and shall not harm the public interests,11 adopts the wording of public interests or social morals. This provision is considered the same as the “public order or good morals” in the content. In judicial practice, the courts have already taken “public order or good morals” as a principle to try some cases infringing upon the citizen’s right of privacy.
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