Article 100 of the General Principles of Civil Law stipulates that "citizens have the right to portrait, and their portraits shall not be used for profit without their consent." However, there is the concept of portrait right in Chinese law, but the connotation and extension of portrait right are not accurately defined in the form of law, and its legal meaning has not been explained or stipulated authoritatively. What is a portrait? According to the opinions of Ci Hai or experts, such as Professor Yang Lixin of China Renmin University (doctoral supervisor, one of the drafters of the personal tort part of China's civil code), portraits are "similar, like", and "like" is compared with the images made by characters. In layman's terms, it is "similar to the image of a character" [1]; It refers to the visual image of citizens' appearance reappearing on the material carrier through painting, photography, sculpture, video, film, television and other artistic forms.
Portrait right is the concrete personality right of citizens. What is the right to portrait? Portrait right is a citizen's personality right with the interests embodied in his own portrait as its content. Compared with other personality rights, the object of portrait right itself has certain property interest factors, that is, it can produce economic benefits because of its use. There are spiritual interests and property interests in the personality interests of portraits, especially the property interests are obvious. Generally speaking, a beautiful person has beautiful value and an ugly person has ugly value, but people who are not ugly or handsome are rarely invited to advertise, which involves the aesthetic value of portraits.
Right, Latin for "jus", refers to both right and law, and contains the meaning of fairness and justice [2]. Rights, also known as legal rights, are the permission and guarantee that the state requires others to do or not do certain behaviors through legal provisions [3]. Divided into political rights, economic rights, social rights and so on. Civil rights are divided into property rights (divided into property rights and intellectual property rights) and personal rights according to whether there is property or not. Personal rights refer to civil rights that are inseparable from themselves and cannot be transferred without direct property content [4]. Personal rights can be divided into status rights (based on a specific identity, such as spouse rights, parental rights, custody, etc.). ) and personality right depend on whether the object is personal interest or identity relationship. Personality right refers to the right of civil subject to maintain independent personality, with personality interests as the object. Personality interest refers to the sum of interests enjoyed by civil subjects in personal freedom and personal dignity, life, health, name, reputation, privacy and portrait [5]. Portrait right belongs to a kind of personality right.
Portrait right is the personality symbol of natural person, which embodies the appearance attribute of natural person. Its basic contents include three items: first, the exclusive right to make portraits in any form at any time, and the right to prohibit others from illegally making their own portraits; The second is the exclusive right, that is, the right to prohibit others from illegally using their portraits, which also includes the right to transfer the right to use portraits; The third is the right to safeguard interests, and anyone except the obligee has the obligation of non-infringement.
In the concept of portrait right, we should pay attention to the following points: 1. Legal persons have no right to portrait, because portraits reflect the appearance attributes of natural persons, although in language, such as "the glorious image of public institutions", there is an image description of legal persons; 2. Portrait in the right of portrait lies in "image", which only refers to the image of face, facial features and "face". This is not accurate. Portrait can not only refer to "facial features" and "face shape", but also refer to the reappearance of natural person's appearance image on the material carrier. Of course, it mainly refers to people's facial image, but it can't be understood as "face" or "five senses". When a photo carries enough images to determine why a person's image is reproduced, it should be determined that the portrait is that person's portrait. Of course, if we can't judge whose portrait it is, of course, we can't determine whose portrait has been infringed. At the first roving exhibition of human photography art held in Hainan Province, a photo of a female model was printed on the ticket. This photo is a portrait of the model with the title "Beauty". The ticket was used to cut off the upper lip of the photo character, which led to a lawsuit. The focus of the dispute is whether it constitutes unauthorized use of this "faceless" photo. 3, text description, does not belong to the reproduction of portraits, such as so-and-so, pointed-billed monkey face, a nose that has been blocked all the year round, stinking, and a pair of beetle eyes flashing with annoying eyes. This needs to be re-processed by the brain and does not belong to the category of portrait rights. If there is infringement, it can be solved by infringement of reputation right. 4. Buildings have no right to portrait, but according to the new copyright law, there are works, which are a kind of works. 5. There are two kinds of copyright closely related to portrait right. Portrait right is the basic right and copyright is the derivative right.
Second, the composition of infringement of portrait right and the exercise of portrait right.
Regarding the confirmation of infringement of portrait rights, according to Article 100 of the General Principles of Civil Law, "a citizen's portrait shall not be used for profit without his consent", there are only two elements. The first condition is sometimes too broad in practice, and it seems that the consent of the person must be obtained at any time, and three "no reasons for preventing illegal activities" are added. Regarding "blocking the illegal cause", it means that although the act prohibited in principle by law is implemented, it has the non-illegal cause specified by law, thus making the implemented act legal and thus blocking the illegal act. Mainly includes:
(1) public welfare: to safeguard social needs, such as high-level task photo exhibition, uncivilized behavior shooting and publishing criticism, wanted fugitives, etc.;
② My interest: publishing Looking for You;
(3) News: In news reports, the right to portrait is submerged in assemblies, queues and ceremonies, and it is not allowed to claim the right to portrait. Similarly, individuals in group photos may not claim the right to portrait;
(4) In order to record a specific public activity, using the portrait of the participant means that participation means that the right to portrait will be used.
On the contrary, the elements of "for profit" are sometimes too narrow to protect the legitimate rights and interests of citizens. For example, some people illegally use other people's portraits (such as deliberately putting their "fangs" in their mouths with wild boar images with wide-angle lenses), not for profit, but also for infringement. Therefore, the restriction of "except insulting portraits" can be increased. Summarize the practical elements of infringement of portrait rights: without my consent, for the purpose of profit (except insulting use), there is no "blocking illegal reasons"
Third, the civil liability for infringement of portrait rights.
The civil liability for infringement of portrait rights includes stopping the infringement, eliminating the influence, apologizing and compensating for the losses. The loss of infringement of portrait right is generally spiritual compensation, and the judge has a strong will. Regarding how to determine the standard of compensation for mental damage, Article 10 of the Interpretation of the Supreme Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Torts "The amount of compensation for mental damage is determined according to the following factors: (1) the degree of fault of the infringer, except as otherwise provided by law; (2) The means, occasions and behaviors of infringement; (3) Consequences caused by the infringement; (4) profits of the infringer; (five) the economic ability of the infringer to bear the responsibility; (six) the average living standard of the court. If laws and administrative regulations clearly stipulate disability compensation and death compensation, the provisions of laws and administrative regulations shall apply. " Mainly by the judge through the above factors to discretionary, at the same time, should be treated differently and the principle of appropriate restrictions. It is difficult to apply a standard in different regions, different parties, different spheres of influence and different nature of cases. I think we can grasp the compensation standard from three aspects: (1) the role of punishment on the offender; (2) Comfort the victims; (3) It has an educational effect on society. The amount of compensation that meets the above three conditions is correct. Each region can set the limit appropriately according to the local economic situation and per capita income level, but the amount of compensation for mental damage should not be fixed in principle and should be discretionary by judges.
Example 1: Watson's body search: A female college student 19 years old in Shanghai was angrily sued after being searched in a supermarket of Shanghai Watsons Commodity Co., Ltd. The Hongkou District People's Court of Shanghai recently ruled that the defendant 10 apologized to the plaintiff Qian Yuan in the newspaper and compensated mental damage compensation for 250,000 yuan. On July 8th, 20001year, when the plaintiff Qian Yuan left Watson's Sichuan North Road Store, the door alarm suddenly sounded. Despite the plaintiff's objection, the defendant forcibly brought him into the office for undressing inspection and found nothing. The plaintiff protested strongly and demanded an apology and compensation from the defendant, but the defendant disagreed. The plaintiff then sued the court, demanding that the defendant apologize and compensate 500,000 yuan for mental losses. The first-instance judgment compensated the mental loss of 250,000 yuan. "Watsons" appealed that consumers did not show evidence of being forced to take off their pants, so the infringement facts could not be identified. But it is a pity that the court of second instance blurred the details of "whether to take off pants by force" when Watsons did not provide sufficient and valid evidence. In fact, it supported part of Watsons' claims, and it was changed to 6,543,800 yuan. This also illustrates the scope of the judge's discretion.
Example 2: People and dogs eat together: In the embassy and consulate area of Shanghai Concession, after the Opium War, the Qing government was corrupt and incompetent, and the sign "Chinese and dogs are not allowed in" was hung in this area. It is reported that the court in Jintai District, Baoji City, Shaanxi Province ruled that "people and dogs eat together" and the plaintiff lost the case. The case is:1At noon on August 6th, 1999, Mr. and Mrs. Wang went to Xiangyang Pavilion Hotel, a subsidiary of Baoji Xiangyang Catering Co., Ltd., for dinner ... while eating, two women with Beijing Ba dogs were feeding their dogs the food bought in the dining room on the table, using the tableware commonly used in the dining room. Wang believed that his personal dignity had been violated, so he sued the Consumer Protection Law and demanded that the restaurant pay 25,000 yuan. Article 14 of the Consumer Law stipulates that "consumers have the right to respect their personal dignity and national customs and habits when purchasing, using goods and receiving services". In the case of "people and dogs eat together", it involves spiritual compensation for personal dignity. Regrettably, the court rejected the plaintiff's lawsuit because the restaurant did not intentionally.
Fourth, some cases about the right of portrait.
Case 1, Carina Lau and Shantou Alice Cosmetics Company.
Shantou Alice Industrial Co., Ltd. printed her portrait on the cosmetic packaging bag without the consent of Hong Kong movie star Carina Lau. After obtaining evidence in Shanghai, Carina Lau sued Alice Company in Shanghai, demanding to stop the infringement, apologize and compensate for the loss of 6,543,800 yuan. The case was settled through mediation, and the compensation was 654.38 million. I heard that most of them were donated to Project Hope.
Strictly speaking, in photography activities, as long as there is one of the following circumstances, it can be considered as infringement of the portrait rights of others.
1. The act of using the portrait right without the consent of the portrait right holder and without hindrance.
The act of using a portrait without the consent of the portrait owner is also called "improper use of another person's portrait". The legal provisions on the right of portrait in China's civil law are basically aimed at "improper use" of the right of portrait. This improper use can be divided into "for profit" and "for non-profit" illegal use. We can't think that as long as it's not for profit, or with the consent of the portrait owner, we can use the portrait of a citizen at will without making a profit. This understanding is one-sided. Article 100 of China's General Principles of Civil Law stipulates: "Citizens have the right to portrait, and their portraits shall not be used for profit without their consent." Article 139 of "Opinions of the Supreme People's Court on Several Issues of Implementation (Trial)" defines this kind of infringement as "making advertisements, trademarks, decorating windows, etc. with citizen portraits for profit." . Article 120 stipulates: "If a citizen's right to name, portrait and reputation is damaged, he has the right to demand to stop the infringement, restore his reputation, eliminate the influence, make an apology and claim compensation for the losses."
In the non-profit use of other people's portraits without their consent, only the behavior with the reason to stop the infringement is legal. Such as news reports, "wanted orders" issued by public security organs to arrest criminal suspects, and so on.
Portrait right, like name right, is an exclusive right. The possession, use and disposal of personal portraits can only be owned by citizens themselves, and no one else can enjoy them without their consent. The act of infringing on the right of portrait is not to use the portrait of a citizen for profit, but to disrespect the exclusive right of a citizen to his portrait. Therefore, for whatever purpose, reproduction, dissemination, exhibition, etc. Citizens' right to portrait should be recognized by citizens, otherwise it will constitute an infringement of the right to portrait.
2. Making portraits of others without authorization (including having photos of others). The act of creating and possessing portraits (photos) of others without my consent. For a photographer, it is the act of taking pictures of others.
Portrait is the external expression of citizen's "personality", and only I have the right to decide whether to reproduce my image. Whether portrait works are made (filmed) for public publication or possession does not affect the composition of infringement of portrait rights. In other words, although it is not used publicly, it also constitutes infringement, such as the photo studio printing the customer's photos privately for preservation.
Third, maliciously insult and vilify the portraits of others. That is, the actor maliciously insults, vilifies, defiles, damages or destroys the integrity of other people's portraits. Including altering, distorting, burning, tearing up or hanging upside down other people's photos, this kind of behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.
To sum up, in photography practice, there are three situations that often constitute infringement of portrait rights:
In recent years, there seem to be more and more reports of so-called infringement of "portrait right". Why? I think there are many reasons, but in the final analysis, there may be three: first, photographers don't understand the law; Second, photographers intentionally infringe on people's portrait rights for the purpose of "making profits"; Third, the photographer does not understand the legal significance of the right to portrait. As long as he sees his portrait in the newspaper, he will sue for compensation.
1, "for profit" must meet two conditions at the same time: first, use the portrait of others without my consent; Second, the profit-making behavior infringes on the portrait rights of others, that is, users subjectively hope to obtain economic benefits by using portraits of others. However, the so-called "profit" is not what we usually understand. As long as there is subjective intention and objective profit-making behavior, whether the actor realizes the profit-making purpose or not, it constitutes a "profit-making" fact.
2. Anyone who infringes on another person's portrait rights (reputation rights and honor rights) in any form shall also bear legal responsibilities: that is, the infringed person has the right to ask the infringer to stop the infringement, restore his reputation, eliminate the influence, apologize and compensate for the losses. Visible, without the permission of the portrait owner, not for the purpose of profit, if it causes actual damage to the portrait owner, such as mental damage to the portrait owner, the user also constitutes tort (portrait right) responsibility. In judicial practice, there are also many cases of defacing, uglifying and distorting citizen portraits for the purpose of not making profits.
From the above, it can be clearly seen that "for profit" is not the only premise and requirement to determine whether there is an infringement of citizens' portrait rights, but only an important plot to determine the size of tort liability.
3. Although the portrait owner agrees to use his portrait works, the users are beyond the scope, area and time limit permitted by the portrait owner. This situation does not need to cause actual damage to the portrait holder, which constitutes tort liability. Of course, this situation generally belongs to the liability for breach of contract.
The way to bear civil liability for infringement of portrait right
In our country, the main way of liability for infringement of portrait right is civil liability. This kind of civil liability includes stopping the infringement, eliminating the influence, apologizing and compensating for the losses. Among them, stopping the infringement, eliminating the influence and apologizing are non-property liability methods, and compensating for losses is property liability methods. In China's judicial practice, the determination of tort liability is generally as follows: First, taking profit as the purpose and taking profit as the compensation standard. That is to say, no matter whether the circumstances are serious or not, whether it is profitable or not, as long as the purpose of illegal use is profit and the owner of the portrait demands compensation, the infringer must bear the liability for compensation. Secondly, for the non-profit infringement of portrait rights, that is to say, the determination of compensation for spiritual interests of infringement of portrait rights is based on "serious circumstances". If the circumstances are minor and have not caused serious consequences, material compensation is generally not awarded.
According to China's legal and judicial practice (mainly the latter), based on certain specific circumstances and social interests, portraits can be used reasonably without the consent of the portrait owner:
Generally speaking, you can't use your own portrait without the consent of the portrait owner, but in some cases, you can still use your own portrait without the consent of the portrait owner, which does not constitute an infringement of the right to portrait, which provides a defense for those who use other people's portraits. These reasons for defense provide users with reasonable conditions for use, which hinders the illegality of using their portraits without the consent of the portrait owner.
Although China has not formulated specific legal provisions in this regard, in judicial practice, it is generally believed that:
1. In order to safeguard national interests and social needs, use portraits of public figures with news value. For example, using portraits to report the deeds of state leaders, political activists and advanced figures.
Public figures, with certain status and news value, are generally celebrities from all walks of life. Their activities often involve all aspects of national politics, economy, social life, culture and entertainment. Therefore, it should be rational to use their portraits to report their deeds. First, in order to safeguard the interests of the country and society, use portraits of public figures. Public figures are people with certain status and news value, usually celebrities from all walks of life. Their activities often involve the politics, economy, social life, culture and entertainment of the country. Therefore, it should be rational to use their portraits to report their deeds, such as presidents, politicians, diplomats, scholars, inventors, writers, artists, actors, athletes and successful industrialists. , there is news. For example, Li, the host of CCTV and a teacher of Public Security University, v. Zhongyuan Wei Pharmaceutical Company for infringement of portrait rights. On July 5, 2000, Li lost the case in the first instance of Fengtai District People's Court. In this case, the photo taken by the plaintiff at Cosway Photography Exhibition appeared in the defendant's advertising album, and the photo was treated as a diluted background. Chen and Li thought that Shanxi Cosway Company had infringed on their portrait rights, so they appealed to the court. After trial, the court held that the COSCO Wei Photography Exhibition, in which Chen and Li took a group photo as a souvenir, was a public welfare social activity. It can be completely disseminated to the public, and the technical treatment on the photos has not affected and distorted the expression of its main content. In addition, the advertising brochure compiled by COSCO Wei Company aims at improving the visibility of the company and shaping a good corporate image, which has no direct profit-making purpose and does not violate relevant national laws and regulations. Every citizen has the right to portrait, but the exercise of the right to portrait should be restricted. Finally, the court ruled that he Li's portrait right had not been violated.
2. Use portraits of people who participated in specific activities on specific occasions. Such as portraits of people attending various gatherings, parades, ceremonies, celebrations and other activities. This kind of activity often has the value of news reporting. The fact that the participants are in it shows that they have given up their portrait rights to a certain extent, and no one can claim their portrait rights when participating in such activities. Portraits formed on these specific occasions should not constitute infringement of portrait rights, but belong to the rational use of portraits.
3. In the photography creation of scenic spots, people are used as decorations, or people are photographed when taking pictures. On these occasions, people are not the main body;
4, in order to exercise the legitimate right of supervision by public opinion (the Constitution stipulates that citizens have the right of supervision), in order to criticize some uncivilized behaviors, in order to condemn the illegal or immoral behavior of the perpetrator, in order to educate the public to abide by the law, respect social morality, and maintain social order. Use citizen portraits to announce their uncivilized behavior. Such as shooting acts of destroying public property and polluting the environment;
5. Use portraits for portrait owners, other natural persons and other social welfare purposes. For example, when I was looking for you in newspapers and TV, I used my photos to find people whose whereabouts were unknown.
6. Portraits of citizens used as evidence (in criminal or civil proceedings) in litigation activities; State organs use portraits of citizens in order to perform official duties. For example, public security organs use their portraits to make wanted orders to hunt down fugitives or other criminal suspects.
7, the state organs to implement and apply the law (such as in the process of administrative law enforcement) and the use of citizen portraits;
8, for the purpose of scientific research and cultural education in a certain range using other people's portraits (mainly refers to the public scope), such as for the purpose of clinical medical teaching and scientific research, and in specific occasions or professional newspapers and periodicals to show patients' photos, etc. Use citizen portraits.
Therefore, I personally think that the following aspects should be paid attention to when using citizen portraits at present:
First, correctly understand the difference between "illustrations and pictures" in the article and news photos and photographic reports.
Second, standardize the picture description text. (such as the name of the work, etc. )
Third, don't trust the "verbal agreement".
Fourth, be careful with pictures on magazine covers.
Five, when submitting (newspapers and magazines, all kinds of film competitions), we should pay attention to the back of the text, plus the authorized use of the work restrictions.
Six, to participate in various photography activities to hire models, we should pay attention to the agreement between the organizer and the model.
Seven, the key is to obtain the written consent of the portrait right holder.
Although the law defines the infringement of citizens' portrait rights, with the development of China's market economy, especially after China's entry into WTO, the use (scope) of photographic works is increasingly affected by "interests", especially the infiltration of economic factors. Therefore, generally speaking, the legal protection of portrait right in China is still relatively principled. For example, how to define "for-profit" and whether the pictures in the news media belong to for-profit; Portrait rights of public figures, especially politicians and entertainers; Definition of the right to use the portrait of the deceased. When we deal with photographic portraits, the problems we encounter are often very specific. So it is very difficult to use these abstract nouns to deal with the specific things we encounter. The hardest thing here is "making a profit". In view of this, as a photographer, when shooting portraits involving people, especially when using them, we should pay more attention to: caution, legality and evidence-these three points are very important. I mean, everyone has the right to portrait. If you want to use other people's portrait rights, you have to get permission from others-this is the safest (so I specially brought several samples of contracts and agreements on "portrait use" and "work agency" today for your reference only).
Some common questions about "portrait right";
1. Does the enterprise have the right to use employee portraits?
The answer is yes: no!
2. Does the portrait right only take care of the "face"?
Don't! Whenever people see a portrait, they always associate it with the personality characteristics of the legal subject being recorded. This personality characteristic is an important resource of human society, and its potential huge commercial value is especially valued by modern commercial society (such as the recent TCL mobile phone advertisement and the invited Korean actress). )
The visual images of other obvious body parts will also remind people of the recorded legal subject and the personality characteristics of the legal subject. Therefore, the vision of other body parts with obvious characteristics also belongs to portrait, and it is also within the protection scope of portrait right.
Whether it constitutes a "portrait" is centered on the positive face of a natural person, and it also tests the cognitive level of ordinary people in society and makes a comprehensive judgment. It can be seen that it can be judged, but if the profile or other parts are shown, people who are generally familiar with it can already judge who they represent, then the profile or other parts also constitute a "portrait".
3. Does the group photo have the problem of portrait right?
Yes As we all know, the personality right of the portrait owner of a personal portrait exists independently. Once infringed, the portrait owner can claim his rights from the infringer according to law. However, the portrait right of collective portrait has its own characteristics. Collective portrait is a collection of independent portraits of all rights holders, which has the characteristics of unity of independence and identity. First, all portrait owners enjoy independent personality rights in photos; On the other hand, in physics, collective portraits are inseparable (everyone has the right to claim rights independently).
Judging from the current judicial practice, it is generally: if the user maliciously destroys, pollutes or vilifies a specific person in a collective portrait, the proportion of personality rights of this specific person is enough to cover all portrait rights holders, and obviously his portrait has been infringed.
Secondly, when judging whether the use of collective portraits violates the portrait rights of specific individuals in collective portraits, does the user use them for profit or for business? Should be a basic basis.
It can be seen that the legal protection of group portraits is lower than that of individual portraits, that is to say, the right of individual portraits in group portraits is restricted to a certain extent, and this restriction is limited to ensuring the rational use of all group photographers. (Only because the existing laws are not perfect)
4. Does taking pictures of others quarreling constitute a violation of portrait rights?
It depends on whether there is a situation that blocks the illegal cause. For example, the clerk quarreled with the customer and had a very bad attitude. In terms of social benefits, this situation violates the professional ethics of salespeople and is also a negative phenomenon in society. Exposing this negative phenomenon is conducive to social progress. Therefore, such an event is undoubtedly a social news, and any citizen has the right to report news, and taking news photos is one of the means of news reporting. Taking photos of this scene belongs to the use of other people's portraits for the public interest and does not constitute an infringement of the salesperson's portrait rights.
However, if two brothers are arguing, so are you. . . Generally speaking, no. . . .
5. Can administrative organs or relevant units "expose" citizen portraits?
For example, a bus stop caught several thieves, but it didn't constitute a crime, so in order to remind passengers, they posted their portraits in the shopping mall and carried out "photo exposure" with the local police station. Seemingly well-intentioned, there are also reasons why the "thief incident" is illegal, but. . . .
Using other people's photos at will, especially posting other people's photos in public places, and causing the negative evaluation of the person by an unspecified majority because of this posting and related text description, will most likely constitute an infringement on the portrait rights of others. The above-mentioned "thief incident" can only be solved through legal channels and procedures. Even if it is a crime, it can only be declared by the people's court in accordance with legal procedures and regulations.
According to the provisions of the Administrative Punishment Law, the types and extent of administrative punishment can only be set by laws, regulations and departmental rules, and other normative documents may not set administrative punishment. There is a principle here: as far as administrative organs are concerned, government organs cannot do it without legal authorization; As far as citizens are concerned, citizens can do something for them as long as there is nothing prohibited by law.
So we have searched all the laws, regulations and rules, and we can't find that public security organs can punish citizens by posting photos publicly. Therefore, the behavior of the police station belongs to arbitrary infringement.
6. How long is the victim's protection period after knowing that he has been "infringed"?
I remember there is a famous photo, which is "Smell after Bankruptcy" (news photo). The caption of the photo reads: "Shi Yongjie, the former director of Shenyang Explosion-proof Equipment Factory, is smoking a stuffy cigarette." The photo was taken at 1986 and published in China Youth Daily, which once caused a sensation in the whole country. Later, this photo often appeared in newspapers and other media. 1April, 999, Shi Yongjie sued the author and related media, arguing that the report actually demeaned and vilified the plaintiff and infringed the plaintiff's right to portrait and reputation.
According to China's General Principles of Civil Law, the limitation of action for requesting protection of civil rights from the people's court is two years. That is to say, if the obligee knows or should know that his rights have been infringed and fails to bring a lawsuit to the people's court within two years, the obligee no longer enjoys the right to ask the people's court for protection. In other words, the obligee's right to win the case is extinguished. Therefore, in fact, Shi Yongjie's lawsuit has exceeded the statute of limitations prescribed by law and has no right to win.
7, the principle of good faith!
I remember that in People's Photography, an author wrote an article "A Way to Deal with Disputes over Portrait Rights", explaining how to obtain the secret of the so-called "power of attorney" of the portrait right holder. That is, after taking photos of the subject, the subject is required to leave his name and address on a piece of white paper and send the enlarged photos to the subject. In fact, the other side of the white paper is a hinge with a statement of consent. This practice is really not desirable!
China's "General Principles of Civil Law" and "Contract Law" both stipulate "invalid civil acts". For example, Article 52 of the Contract Law stipulates that a contract concluded by the parties through fraud or coercion is regarded as invalid.
At the same time, China's General Principles of Civil Law also stipulates corresponding principles, one of which is "voluntariness, fairness, equal compensation, honesty and credit", and the principle of "honesty and credit" is called "emperor clause", which means: First, civil servants should exercise their rights and perform their obligations in good faith, and must not abuse their rights, harm the interests of others or violate the interests of the country or the country. Second, the interpretation of the contract should be based on honesty and credit. That is, when the court or arbitration institution interprets the contract, it should judge right and wrong and determine the responsibility according to the principle of good faith. The third is to make up for the lack of legal provisions with the principle of good faith. What is important is that on the last point, the principle of "honesty and credit" gives judicial personnel certain discretion! So people call it the imperial clause. In other words, the principle of good faith can explain and fill the law when there are loopholes in the law.
So, don't be smart, know that "cleverness is mistaken by cleverness."