On the Elements of Liability and Balancing of Interests in Determining Infringements of Personality Rights

Abstract

The balancing of interests approach introduced by Article 998 of the Civil Code of the People’s Republic of China does not completely free the normative system of determining civil liability for infringements of personality rights from the constraints of the elements of liability theory, nor does it fully adopt the position of the dynamic system theory. Based on distinguishing between material and non-material personality rights, between specific and general personality rights, and on whether there exist predefined typical types of infringing acts within non-material personality rights, Article 998 differentiates between the elements of liability and the balancing of interests, the two methods of legal effect evaluation, in determining civil liability for infringements of personality rights. For material personality rights that have a clearly defined connotation and extension, and that enjoy self-sufficiency in their exercise, a strict elements of liability approach is adopted for determining liability for infringements. Only in exceptional cases where the law provides specific regulations or under other exceptional circumstances are judges allowed to exercise discretion in balancing the interests to determine the corresponding civil liability. For non-material personality rights, which possess strong social attributes and often face conflicts of interest, the determination of liability is based on the existence of specific factual elements, particularly the presence of pre-defined typical infringing acts. This distinguishes between the domains where the legal effects of corresponding actions are primarily evaluated through the elements of liability and the domains where the legal effects are primarily evaluated through the balancing of interests approach.

Keywords

infringements of personality rights / dynamic system theory / elements of liability / factual elements / balancing of interests

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