Bao Xun 'an, the 36th generation descendant of Bao Gong and the president of Bao Gong's spiritual inheritance research society, is full of anger and doubt. "This Bao Gong looks like a foreigner. His black hat is neither fish nor fowl. It can be described as funny.
Bao Gong is the most famous honest official in the history of China, and should not be a tool for Starbucks to seek novelty.
Afterwards, the public relations manager of Starbucks Greater China said that Starbucks' cup was called "City Cup", not "Baogong Cup", but there was no response on whether to stop selling and recall Hefei City Cup.
In recent years, incidents of subverting the image of historical figures have occurred from time to time in our country, and the legal protection of historical figures has also become a topic of general concern to the public and related legal persons.
From Dayu's extramarital affair in 2008, to the controversial film Confucius in 20 10, and then to Guan Yu's traitor theory in 20 1 1, more and more historical figures have been misinterpreted or misread.
In the face of such incidents, the descendants of some historical figures hope to resort to legal means to safeguard the personal dignity of their ancestors, but they have no choice but to face legal obstacles.
Because according to the Supreme People's Court's "Answers to Several Questions on the Trial of Reputation Right Cases", if the reputation of the deceased is damaged, his close relatives have the right to bring a lawsuit to the people's court.
In other words, historical figures thousands of years ago cannot be excused by "close relatives".
Faced with the dilemma of "historical figures are difficult", many people call on the law to make a difference.
So, are historical figures protected by law? Who is the protector of the personality interests of historical figures? How should the law reasonably protect historical figures? The so-called historical figures refer to people who have left footprints in the long river of history. Most of them have promoted or hindered the development of history, so they are remembered by people.
Ancient thinkers in China believed that people's morality could be improved if they were cautious in the end.
With the passage of time, for modern people, the significance of lost historical figures is nothing more than that their personality interests have brought spiritual enjoyment to modern people and met people's needs for ideological inheritance and national cultural pride.
As people's basic rules of conduct, law is expected to safeguard legitimate rights and interests by adjusting various social relations and ensure people's free control over spiritual and material enjoyment.
However, it must be noted that in the traditional legal concept, human rights are closely related to the subject and only exist in the process of individual from birth to death. The right to lose the subject cannot exist alone, so historical figures cannot become legal subjects and enjoy legal rights because of the disappearance of the subject.
However, the reputation of historical figures is directly related to the interests of survivors, and their survivors will feel angry, uneasy or painful because of the damage to the reputation of historical figures. Therefore, the law protects the reputation rights or interests of the survivors of historical figures, not the reputation of historical figures.
Of course, the maintenance of the reputation of historical figures sometimes even involves the moral concepts, public order and good customs of the whole society, which is also a reflection interest enjoyed by all members of society.
Therefore, it is concluded that historical figures themselves do not have the objective conditions to be protected by law, and they cannot enter the legal relationship and be protected, but the spiritual enjoyment they bring to future generations can become the object in the legal relationship as personality interests.
In contrast, what really needs to be brought into the legal protection system is the modern people who enjoy the spirit of historical figures, which is both possible and inevitable.
Since it is affirmed that modern people have the right to spiritual enjoyment brought by historical figures, when the personal interests of historical figures are violated, modern people can exercise their rights endowed by law to fight back.
The existing law is only limited to the provisions of protecting the personal interests of the deceased brought by close relatives, and its purpose is to prevent the obligee from suing indiscriminately.
This restrictive system design may be reasonable for ordinary people, but if it is applicable to historical figures, there is no lack of doubt and one-sidedness.
The reasons are as follows: First, in the long history, for most historical figures, there is no possibility of their close relatives. This provision not only lacks practical significance, but also causes historical figures to become unprotected "ghosts", making their infringers fearless; Second, historical figures have a wide range of influences, which are mostly related to China people's fond memories of historical civilization. The spiritual enjoyment brought to future generations is not limited to their descendants or rural hometown, but has no boundaries.
Therefore, special provisions should be made for the protection of the personal interests left by historical figures-in the case of sufficient evidence to prove the true identity of future generations, the descendants of historical figures have the right to file a lawsuit against the events that infringe on the personal interests left behind; When the close relatives of the deceased can't or don't claim rights, if it involves public interests or national interests, the public prosecution organ or other rights subjects can have the right to appeal for public interest litigation, thus completely protecting the personality and spiritual interests of historical figures.
In this regard, we can learn from relevant foreign legislation.
Of course, in the process of protecting the spiritual interests left by historical figures, we should also make clear the boundaries, and we must not overdo it and expand the scope of attack.
The influence of historical figures touches many corners of people's lives, and all kinds of articles, statues, products and film and television works will reshape their images, but whether they infringe on their personal interests cannot be generalized.
For example, Zhang Fei was used to advertise razors, and Yang Yuhuan was asked to speak for diet pills.
In essence, it may be a mockery of historical figures by humorous means, which does not damage the historical evaluation of the characters themselves and should not be considered as infringement.
In order to highlight the theme, some historical events should be properly artistically modified in film works. As long as they do not violate the original appearance and spirit of historical figures as a whole, they should not be regarded as infringement.
However, if the historical materials have been proved and established, it is undoubtedly regarded as infringement to distort or desecrate the reputation of great men or recognized "good people" in history without any factual basis and justifiable reasons.
This requires modern people to respect history whether in the process of free comment or business deduction, and once they exceed their own bottom line, they will bear legal responsibility for their actions.
As for how to balance the discretion in judging cases, the law should give judges more discretion. After all, this kind of thing involving the standard of value judgment is difficult to quantify.
After all, looking at the face of this "foreign Bao Gong" and drinking coffee really makes some people feel bad! (Author: Southwest University of Political Science and Law)