Case review
There was a chill in his tone: "When Miss Zhao went to my humble abode three days ago, she said she would come again, but I didn't see you, so I had to visit in person." Mr. Sheng was startled and looked up to meet his burning eyes. "How do you know ..." She didn't leave her name. How did he know it was her who returned the wallet? "Teacher Zhao, I happen to have the reasoning ability of a normal person." He said sarcastically. Maybe all lawyers have this "normal reasoning ability". Murson stared at the wall. "I'm going to return my wallet." Since you have it, you don't have to go again. " Chen Yi's eyes are shining. "You have nothing to do but return your wallet?" What else can she do? Mo Sheng was stunned: "No." "Very good." There seemed to be a trace of disappointment in his eyes, and he walked up to her. "But I have something to do." He took out his black wallet and put it in front of her: "There is a photo in it. Does Teacher Zhao know where it is? " Of course, Mo Sheng lowered his head and said, "Is there? I didn't notice. " "oh? There is nothing in the wallet except money. How does Teacher Zhao know that the wallet is mine? " Mr. Sheng was speechless. I almost forgot that he is a lawyer, and he is good at finding out all the loopholes in each other's words. If you want to cheat him, you have to weigh your own weight first. He leaned over and said, "Miss Zhao, can I have my photo back?" Mr. Sheng suddenly felt puzzled. What does he mean? While posing as "you are a stranger", you are asking for her photos. "The person in the photo is me. Why should I give it to you?" "Miss Zhao, I suggest you don't discuss the ownership of the goods with your lawyer." Chen Leng said coldly.
Legal perspective
He Chenyi claimed that the photos in the wallet belonged to him. According to the second paragraph of Article 2 of China's Property Law: "The property rights mentioned in this Law refer to the direct domination and exclusive rights enjoyed by the obligee over specific things according to law, including ownership, usufructuary right and security right." Article 4 stipulates: "State, collective and private property rights and the property rights of other obligees are protected by law, and no unit or individual may infringe upon them." Therefore, He Chenyi has the right to possess, use, benefit and dispose of the photos he owns according to law. If you don't return all the photos of He, it will constitute a violation of his ownership. The basis of this claim is stipulated in Article 3 of the Tort Liability Law: "The infringed has the right to request the infringer to bear tort liability." At this time, we will definitely have the same question as Zhao Mosheng: "The person in the photo is me, why should I give it to you?" We say that the person in the photo is indeed, but the photo is a "thing", the object of property rights, and where it belongs. The person in the photo is indeed Zhao Mosheng, but she only enjoys the "personality right", specifically the "portrait right" in the personality right. The so-called "portrait right" refers to the right to copy and use one's own portrait and the right to exclude others' infringement. It is a kind of personality right that a natural person enjoys with the personal interests embodied in his own portrait as its content. This right is independent of the real "thing", that is, photos. This is the basis of his defense for Chen Yi.
However, all the above claims must be based on a necessary premise: he Chen Yi legally possessed this photo. There are two paths to the change of real right: one is the change of real right based on legal acts; The second is the change of real right based on non-legal acts, including preemption, bona fide acquisition and inheritance.
Therefore, what is more important is how to prove that the way to obtain photo ownership is legal and effective, but why just ignore this link. According to the above description, "that photo was carefully taken out by Mr. Sheng, with traces of steel seal on it, which should have been torn off from some documents. Inadvertently turned it over, she suddenly froze, and there was a word behind it! She will never forget the dexterity and sharpness of that hand, as if it could penetrate the handwriting on the paper. That was written by Chen with a black pen-my sunshine! " . "There are steel seal marks on the photo, which should be torn off from the certificate." According to this evidence, it can be reasonably speculated that He Chenyi was torn from one of her documents as a souvenir after Zhao Mosheng suddenly went abroad. In other words, the way he got the photos is not a true and effective expression of Zhao Mosheng. In other words, the way he got the photos is illegal! He doesn't enjoy its ownership! At this time, theoretically speaking, there are two ways for Zhao Mosheng to get relief: First, according to Article 245 of the Property Law: "If the occupied real estate or chattel is occupied, the possessor has the right to request the return of the original; The possessor has the right to request the removal of the obstruction or danger for the act that hinders possession; If the damage is caused by occupation or obstruction, the possessor has the right to claim damages ",and Zhao Mosheng can claim the right to claim possession as a possessor. However, according to the second paragraph of this article: "If the possessor's right of claim to return the original property is not exercised within one year from the date of possession, the right of claim shall be extinguished". At this time, Zhao Mosheng has been away from this country for seven years, and the scheduled period 1 year has passed. This request can no longer be supported by law; Another remedy is based on Article 34 of the Property Law: "If the owner has no right to possess real estate or chattel, the obligee may request the return of the original". He advocates that the original should be returned to He, who is the owner of the property, and there is no limitation. Therefore, according to this clause, Zhao Mosheng can prove that his behavior of preserving photos is his proper exercise of private relief.
Finally, Chen Yi said coldly, "Miss Zhao, I advise you not to discuss the ownership of articles with lawyers." To sum up, in fact, Miss Li also discussed the ownership of the goods with Mr. He, right?