In judicial practice, non-profit use of other people’s portraits without their consent may also constitute an infringement of other people’s portrait rights.

Article 100 of the "General Principles of the People's Republic of China and the Civil Law" stipulates: Citizens enjoy the right of portrait, and citizens' portraits may not be used for profit without their consent.

Article 120 of the "General Principles of the People's Republic of China and Civil Law" stipulates: If a citizen's right to name, portrait, reputation, or honor is infringed, he or she has the right to demand that the infringement be stopped and that the right to be restored be restored. reputation, eliminate the impact, apologize, and can claim compensation for losses.

1. What is "image right".

"Portrait" has different understandings from different angles. A portrait in the art sense (or photography) refers to a kind of ornamental modeling work that reproduces the image of the portrait owner in a material carrier through artistic means such as painting and photography.

Portrait in the legal sense contains the personality interests enjoyed by the portrait owner based on his or her portrait. Generally, it has the following legal characteristics:

1. A portrait is an artistic reproduction of the appearance of a natural person.

Usually, when we judge whether a character’s external image constitutes a portrait, we should look at it in combination with the form of expression and the parts of the expression.

First of all, the character image must have portrait characteristics. First, the form of expression is to reflect the image of a specific citizen through photography; second, the portrait must also reflect the posture, appearance, expression and other main characteristics of the specific citizen; third, the portrait must be real and identifiable, and people who know it must know it at a glance. Whose portrait.

Secondly, it must be the fact that it is a portrait of a specific citizen. In pictures, citizen portraits should occupy a prominent subject position in the entire image and be represented as specific objects, not as foils; at the same time, the purpose is not to achieve the goal through the use of portraits (means).

2. Portraits have the attributes of objects.

When a portrait is artistically reproduced, it should be concretely and independently fixed on a specific material carrier (such as photo paper, TV screen, newspapers, magazines, etc.), which originates from the portrait right holder. It is also independent of the objective visual image of the portrait owner, can be dominated, controlled and disposed of by others, and has certain property interests.

3. Portrait is the object of portrait rights and expresses the unique personality interests of natural persons.

The so-called "property interests" are not derived from the appearance characteristics of natural persons themselves, but are derived from the personality interests based on portraits, and reflect different personality interests needs. Providing legal protection to the portrait rights of natural persons is actually the need to protect personal interests.

The so-called "portrait right" is a personality right exclusive to natural persons. The legal meaning is: the inviolable exclusive right possessed by a natural person to reproduce his own image (portrait) on an objective material carrier through plastic arts or other forms.

Citizens’ personal interests reflected in their own portraits are the objects of protection of portrait rights stipulated in our country’s laws. It includes spiritual interests and property interests based on the personality interests reflected in the portrait.

Its characteristics are:

1. The subject of portrait rights can only be natural persons. Only natural persons own portraits and their likeness rights. Legal persons or other social organizations do not enjoy portrait rights because there is no objective "portrait" that can independently reflect their appearance. (The "corporate image" of a legal person does not refer to a person's portrait, but the comprehensive status and social evaluation of the legal person's operation, scale, management, efficiency, credit and product quality.)

2. Portrait rights also Having a kind of property interest, which is derived and generated through the personality interest of the portrait right holder. It allows the portrait right holder to transfer the portrait right within a certain scope and allows others to make and use his or her portrait. and obtain due use value from it.

3. The right of portrait is also a kind of iconic personality right, which is grass-roots. The basic function is to identify personality by appearance and image, so as to identify each specific natural person. (The right to name is to identify personality through text symbols).

Contents of portrait rights:

1. Exclusive right to produce portraits

As far as photography is concerned, the appearance of a natural person is fixed on a film, The entire process of transforming the image of a natural person into a portrait on photographic paper or other material carriers.

The contents of the exclusive rights of portrait production include: First, the portrait right holder has the right to decide to make his or her own portrait or have his or her portrait produced by others according to his or her own needs or the needs of others or society, and no one else is allowed to do so. Interference; second, the portrait right holder has the right to prohibit others from making his or her own portrait without his consent or authorization. Illegal production of portraits of others constitutes infringement.

When understanding the "right of portrait production", we often think that as long as the portrait of the portrait owner is not disclosed, it does not constitute an infringement. This is a misunderstanding of the law. In a strict sense, the understanding should be: whether the exclusive right to create a portrait is infringed depends on whether the producer has obtained the permission of the owner of the portrait right at the time of production. Production without permission - even for the purpose of private collection, will not Infringement of the direct interests of the portrait owner also constitutes infringement of the exclusive right to create portraits. As a photographer, as long as you point the camera at a natural person and take a portrait, if the portrait owner does not agree and forcibly takes the photo, it is an infringement.

2. Exclusive right to use portrait

Once the portrait is fixed on a certain material carrier (produced), it becomes independent from the world and can be controlled and used by people. Although the use value of a portrait has universal significance, only the owner of the portrait right has the exclusive right to use it. Its basic content is:

First, natural persons have the right to use their own likeness in any way and obtain spiritual satisfaction and property gains through use, and others are not allowed to interfere (but must not violate the law and public order and good customs) . Second, a natural person has the right to allow others to use his or her likeness and decide to receive remuneration from it (this requires equal negotiation with the user and signing of a likeness use contract). Third, natural persons have the right to prohibit others from illegally using their likenesses.

3. Right to protect portrait interests

Portrait interests are the exclusive personal interests of citizens, and others are not allowed to interfere or infringe. The content is: first, citizens have the right to prohibit others from making their own portraits without their permission; second, citizens have the right to prohibit others from using their own portraits without permission; third, citizens have the right to prohibit others from damaging, defiling, or damaging their own portraits. Deflate and distort.

The general principle is: citizens have the right to the reproduction of their own image - the right to agree or disagree with the reproduction of their own image on objective material media and space; citizens have the right to use their own likenesses , the right to allow others to use one's likeness, and the right to prohibit others from using one's likeness.

Civil liability for infringement of portrait rights

There are certain principles for determining that portrait rights have been infringed. According to the general principles of my country's civil law, as long as the following three requirements are met, civil liability for infringement of portrait rights can be determined: First, there is a fact of damage. If the right of portrait is infringed

Civil liability

There are certain principles for determining that the right of portrait has been infringed. According to the general principles of my country's civil law, as long as the following three requirements are met, civil liability for infringement of portrait rights can be determined: First, there is a fact of damage. For example, after the subject's portrait rights are infringed, the victim's reputation, status, and identity are hit, causing mental pain. This is mainly reflected in the reduction of the possibility of the portrait rights holder to obtain property benefits from his or her portrait. This includes direct and indirect losses, including mental damage and material damage. 2. The infringer is subjectively at fault (including intentionality and negligence). That is to say, if there are indeed behaviors prohibited by laws and regulations in photography activities, and if the portrait rights of others are illegally infringed, it can be deemed to be at fault. 3. There is a causal relationship between the fact of damage and the infringement. This causal relationship must be the intrinsic, essential, and inevitable connection between the photographer's behavior and the damage results.

Strictly speaking, in photography activities, as long as one of the following circumstances occurs, it can be regarded as infringing on the portrait rights of others.

1. The act of using the portrait without the consent of the portrait owner without any illegal reasons.

The act of using the portrait owner’s portrait without his or her consent is also called “improper use of another person’s portrait.” The legal provisions on portrait rights in my country's civil law basically address the "improper use" of portraits. This improper use is divided into: "for-profit" and "non-profit" illegal use. We cannot think that as long as the purpose is not for profit, or with the consent of the portrait rights holder, a citizen's portrait can be used arbitrarily for non-profit purposes. This understanding is one-sided. Article 100 of my country's "General Principles of Civil Law" stipulates: "Citizens enjoy the right of portrait, and citizens' portraits may not be used for profit without their consent." The Supreme People's Court's "On the Implementation of the General Principles of the People's Republic of China and Civil Law" gt; Opinions on Several Issues (Trial)" Article 139 limits this infringement to the scope of: "for the purpose of profit, using the citizen's likeness for advertising, trademarks, window decoration, etc. without the consent." Article 120 stipulates: "Citizens whose rights to name, portrait, or reputation have been harmed have the right to demand that the infringement be stopped, their reputation restored, the impact eliminated, an apology made, and compensation for losses."

In The non-profit use of another person's portrait without the person's consent is legal only if it has a pretext to prevent an illegal act. Such as news reports, "wanted orders" issued by the public security organs to apprehend criminal suspects, etc.

The right to portrait, like the right to name, has exclusive rights. The possession, use and disposal of one's own portrait can only belong to the citizen himself, and no one else can enjoy it without his consent. Infringement of portrait rights does not consist in using citizens' portraits for profit, but in disrespecting citizens' exclusive rights to their portraits. Therefore, regardless of the purpose, the citizen's consent must be obtained to copy, disseminate, or exhibit a citizen's portrait, otherwise it will constitute an infringement of portrait rights.

2. Making portraits of others without authorization (including possessing photos of others). The act of creating and possessing other people's portraits (photos) without their consent. For photographers, it is the act of secretly taking photos of others.

Portrait is the external expression of a citizen’s “personality”, and only the person has the right to decide whether to reproduce his or her own image. As for whether the portrait is produced (photographed) for public publication or private collection, it does not affect the composition of the infringement of portrait rights. That is to say: even if it is not used publicly, it still constitutes infringement, such as a photo studio privately printing and storing customer photos, etc.

3. Maliciously insult or deface other people’s portraits. That is, the wrongdoer maliciously infringes the portrait of others or destroys the integrity of the portrait of others by insulting, vilifying, defiling, damaging, etc. Including altering, distorting, burning, tearing or hanging other people's photos upside down, such behavior not only constitutes an infringement of the right of portrait, but also often constitutes an infringement of the right of reputation.

Based on the above, in photography practice, there are often three situations that constitute infringement of portrait rights:

In recent years, there have been reports of so-called infringement of "portrait rights". There seems to be a growing trend, why? I think there are many reasons, but they can be boiled down to three types: first, the photographer does not understand the law; second, the photographer intentionally infringes on other people's portrait rights with the intention of "profiting"; third, the person being photographed does not understand the law of portrait rights Meaning, as long as you see your own portrait published in the newspaper, you will sue for compensation.

1. "For profit" must meet two conditions: First, the use of other people's portraits without the person's consent. The second is that the behavior is for profit and infringes on the portrait rights of others, that is, the user subjectively hopes to obtain economic benefits through the use of other people's portraits. However, the so-called "profit" is not what we usually understand. There must be actual profit-making, as long as there is a subjective intention to make a profit and there is an objective profit-making behavior, regardless of whether the perpetrator achieves the profit-making purpose, it will constitute an actual "profit-making".

2. Infringement of others in any form. The right of portrait (right of reputation, right of honor) is also subject to legal liability: that is, the victim has the right to ask the infringer to stop the infringement, restore reputation, eliminate the impact, apologize, and compensate for losses.

It can be seen that if the use of another person's portrait without the permission of the portrait right holder without profit-making causes actual damage to the portrait right holder, such as causing mental damage to the portrait right holder, the user will also constitute an infringement (portrait copyright infringement). rights) responsibilities. In judicial practice, there are also many cases where citizens’ portraits are defaced, vilified, and distorted for no profit-making purpose.

The above can clearly show that: whether it is "for profit" is not the only prerequisite and requirement for determining whether there is an infringement of citizens' portrait rights, but is only an important factor in determining the extent of infringement liability.

3. Although the portrait right holder agrees to use his or her portrait, the user has exceeded the scope, area, and time limit of use permitted by the portrait right holder. This situation does not require actual damage to the portrait right holder to constitute infringement liability. Of course, this situation generally falls under the liability for breach of contract.

How to bear civil liability for infringement of portrait rights

The main way of liability for infringement of portrait rights in my country is civil liability. The civil liability methods include stopping the infringement, eliminating the impact, making an apology, and compensating for losses. Among them, stopping the infringement, eliminating the impact, and making an apology are non-property liability methods, and compensating for losses is a property liability method. In our country's judicial practice, the determination of tort liability is generally as follows: First, if it is for "profit purposes", the profit-making purpose is used as the standard for compensation. That is to say, regardless of whether the circumstances are "serious" or not, and regardless of whether it is profitable or not, as long as the purpose of the illegal use is to make a profit and the portrait right holder demands compensation, the infringer must bear liability for compensation. Second, for those who infringe on portrait rights for non-profit purposes, that is to say, the determination of compensation for damages to moral interests for infringement of portrait rights is based on the basic standard of “serious circumstances.” If the circumstances are minor and do not cause serious consequences, material compensation is generally not awarded.

According to my country's laws and judicial practice (mainly the latter), based on certain specific circumstances and social public interests, the portrait can be used reasonably without the consent of the portrait owner:

Generally speaking, one is not allowed to use the portrait without the consent of the portrait owner. However, in some cases, the portrait can still be used without the consent of the portrait owner, which does not constitute an infringement of the portrait. rights, which provides a defense for those who use another person's likeness. These defense grounds provide users with conditions for fair use and prevent the illegal use of their portraits without the consent of the portrait rights holder.

Although our country has not formulated specific legal provisions in this regard, in judicial practice, it is generally understood that:

1. In order to safeguard the interests of the country and the needs of society, the use of Portraits of newsworthy public figures. Such as the use of portraits to report the deeds of national leaders, political activists and advanced figures.

Public figures are people who have a certain identity and status and are newsworthy. They are generally celebrities from all walks of life. Their activities often involve the country’s politics, economy, social life, culture and entertainment, etc. In all aspects, therefore, the use of his likeness for reporting his deeds should be considered fair use. First, the use of portraits of public figures is necessary to safeguard national and social interests. Public figures are people who have a certain identity and status and are newsworthy. They are generally celebrities from all walks of life. Their activities often involve all aspects of the country's politics, economy, social life, culture and entertainment. Therefore, it is important to report their deeds. The use of their portraits should be fair use, such as national presidents, politicians, diplomats, scholars, inventors, writers, artists, actors, athletes, successful industrialists, etc., which have news value and are used to report their activities. Although the portrait is taken without the consent of the person, it does not constitute infringement. For example, the case where CCTV host Chen and Public Security University teacher Li sued COSCO Pharmaceutical Company for infringement of their portrait rights is an example. On July 5, 2000, Chen and Li lost the first instance trial at the Fengtai District People's Court of Beijing. The facts of the case were that because the plaintiff’s photo taken at the COSCO Photography Exhibition appeared in the defendant’s advertising brochure, and the photo was processed to dilute the background, Chen and Li believed that Shanxi COSCO had infringed upon their right to portrait. Go to court.

After investigation, the court held that the COSCOW Photography Exhibition where Chen and Li took a group photo was a social activity of a public welfare nature. It can be disseminated openly to the public, and the technical processing on the photo has not affected or distorted the expression of its main content. In addition, the advertising brochure compiled and printed by COSCO Wei is to increase the company's visibility and create a good corporate image. It does not have direct profit-making purposes and does not violate relevant national laws and regulations. Every citizen enjoys the right of portrait, but the exercise of the right of portrait should be subject to certain restrictions. In the end, the court ruled that the portrait rights of Chen and Li had not been infringed.

2. Use portraits of people who attended specific events on specific occasions. Such as portraits of people participating in various rallies, parades, ceremonies, celebrations and other activities. Such activities are often of news value. Participants who participate in them have already given up their portrait rights to a certain extent. No one who participates in such activities may claim their portrait rights. The use of portraits formed on these specific occasions should not constitute an infringement of portrait rights, but a reasonable use of the portrait.

3. When photographing in scenic spots, people are used as embellishments, or photos are taken to include other people in the photos. In these situations, people are not the main subjects;

4. In order to exercise the legitimate right of public opinion supervision (the Constitution stipulates that citizens have the right to supervise), to criticize certain uncivilized behaviors and behaviors, to condemn the perpetrator's illegal or immoral behavior, to educate the public to abide by the law and respect social morality, Maintain social order, etc., and use citizens’ portraits to publish their uncivilized behaviors. Such as photographing behaviors that damage public property and pollute the environment;

5. Use his or her portrait for the benefit of the person who has the portrait right, the interests of other natural persons and other social welfare purposes. For example, a photo of the person used to publish missing person notices in newspapers, magazines, and television in order to search for a missing person.

6. In litigation activities, citizens’ portraits are used as evidence (in criminal or civil cases, during the litigation stage); state agencies compulsorily use citizens’ portraits to perform official duties. For example, the public security organs use their portraits to create wanted warrants in order to hunt down fugitives or other criminal suspects.

7. National agencies use citizens’ portraits for the purpose of executing and applying laws (such as in the process of administrative law enforcement);

8. Within a certain scope for the purpose of scientific research and cultural education Using other people's portraits (mainly refers to the scope of social disclosure), such as displaying patient photos on specific occasions or in professional newspapers and magazines for the purpose of clinical medical teaching and scientific research. Use citizen portraits.

Therefore, I personally believe that the following aspects should be paid attention to when using citizen portraits:

1. Correctly understand the "illustrations, illustrated photos" and news photos, The difference in photojournalism.

2. Standardize picture captions. (Such as the naming of the work, etc.)

3. Don’t believe in “verbal agreements”.

4. Be cautious about using pictures on magazine covers.

5. When submitting your work (for newspapers, magazines, and various film competitions), be sure to add restrictions on the use of the work after the description.

6. When participating in various photography activities that employ models, pay attention to the agreement between the organizer and the model.

7. The key is to obtain a written agreement from the portrait rights holder.

Although the law has already defined the infringement of citizens’ portrait rights, with the development of my country’s market economy, especially after joining the WTO, the use (scope) of photographic works has become increasingly difficult to get rid of. The influence of "interests", especially the penetration of economic factors. Therefore, overall, my country's laws regarding the legal protection of portrait rights are still relatively principled. For example, how to define what is "for-profit", whether the pictures on the news media are for-profit; the right to use the portrait of public figures, especially the right to use the portrait of politicians and the entertainment industry; the definition of the right to use the portrait of the deceased, etc. When we deal with photographic portraits, the problems we encounter are often very specific. Therefore, it is very difficult when we rely on these abstract terms to deal with the specific things we encounter. The most difficult thing here is " Profit purpose”.

In view of this, as a photographer, when taking portraits of people, especially when using them, you should pay more attention: be cautious, follow the law, and have evidence - these three points are very important. What I mean is that everyone has the right to portrait. If you want to use other people’s portrait rights, you must obtain the consent of others - this is the safest way (so today I specially brought some information about "use of portrait" and "works"). Samples of contracts and agreements for "agency" and other aspects are for your reference only).

Some common questions about "portrait rights":

1. Does the company have the right to use the portrait of its employees?

The answer is yes: no!

2. Does the right of portrait only concern the “face”?

No! Whenever people see a portrait, they will always think of the recorded personality traits of the legal subject. This personality trait is an important resource in human society, and its potential huge commercial value is especially valued by modern business society (such as A recent TCL mobile phone advertisement featured a Korean female movie star.)

The visual image of other body parts with distinctive characteristics will also be reminiscent 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 the portrait and is within the scope of portrait right protection.

Whether it constitutes a "portrait" is centered on the frontal face of the natural person. It should also test the cognitive level of ordinary people in society and make a comprehensive and comprehensive judgment. It can be seen that if the profile or other parts are shown, and generally familiar people can judge who it represents, then the profile or other parts also constitute a "portrait".

3. Are there portrait rights issues in group photos?

Yes. As we all know, the personality right of the portrait right holder of an individual's portrait exists independently. Once it is infringed, the portrait right holder can claim his rights against the infringer in accordance with the law. However, the portrait right of a collective portrait has its own characteristics. A collective portrait is a collection of independent portraits of each right holder, and has the characteristics of independence and identity. First, each portrait rights holder enjoys independent personality rights in the photo; on the other hand, the collective portrait is physically indivisible (everyone has the right to independently claim rights).

From the current judicial practice, generally: if the user maliciously damages, stains or vilifies a specific person in the collective portrait, the proportion of the specific person's personality rights is sufficient. Covering all portrait rights holders, it is obvious that their portraits have been infringed.

Secondly, when judging whether the use of a collective portrait infringes upon the portrait rights of a specific individual in the collective portrait, does the user do it for profit-making purposes and does it have commercial use? It should be a basic basis.

It can be seen that the legal protection level of collective portraits is lower than that of individual portraits, that is to say: the individual portrait rights in collective portraits are subject to certain restrictions, and such restrictions are limited to ensuring that all those taking the group photo can use it reasonably. . (Only because the current law is not perfect)

4. Does taking photos of others quarreling constitute an infringement of portrait rights?

This depends on whether there are any circumstances that would prevent the violation of the law. For example, a salesperson in a store had an argument with a customer and had a very bad attitude. From the perspective of social benefits, the salesperson's bad attitude and unreasonable behavior with customers violate the professional ethics of the salesperson and are also a negative phenomenon in society. Disclosure of such negative phenomena is beneficial to the progress of society. Therefore, such an incident is undoubtedly a social news. Any citizen has the right to report in the news, and taking news photos is one of the means of news reporting. Taking photos of such scenes is the use of other people's portraits for the benefit of social public welfare and does not constitute an infringement of the salesperson's portrait rights.

But if two brothers are quarreling, so will you. . . Generally speaking, no. . . .

5. Can administrative agencies or relevant units conduct "photo exposure" of citizens' portraits?

For example, if a few thieves were caught at a bus station, but it was not a crime, they would work with the local police station to post their portraits in the shopping mall for "photo exposure" in order to remind passengers to pay attention.

This seems to have good intentions and good intentions, and there are also illegal reasons for the "thief incident", however. . . .

It is extremely dangerous to use other people's photos at will, especially to post other people's photos in public places, and to cause negative evaluation of that person by an unspecified majority of people due to such posting and related text descriptions. It may constitute an infringement of 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, the people's court can only issue a notice in accordance with legal procedures and regulations.

According to the "Administrative Penalty Law", the types and extent of administrative penalties can only be set by laws, regulations and departmental rules, and other normative documents may not set administrative penalties. There is a principle here: As far as administrative agencies are concerned, government agencies cannot do anything that is not authorized by law; as far as citizens are concerned, as long as the law does not prohibit it, citizens can do it.

Therefore, after searching all the laws, regulations and rules, we cannot find that the public security organs can punish citizens by posting their photos in public places. Therefore, the behavior of the police station is an arbitrary infringement.

6. After it is known that the victim has been “infringed”, what is the victim’s protection period?

I remember a very famous photo, "The Taste of Bankruptcy" (news photo). The text accompanying the photo is: "The person smoking a cigarette is Shi Yongjie, the former director of the Shenyang Explosion-proof Equipment Factory." The photo was taken in 1986 and published in the China Youth Daily. It once caused a sensation across the country. Later, the photo was often seen in newspapers and other media. In April 1999, Shi Yongjie brought the author and relevant media to court, arguing that the report actually belittled and vilified the plaintiff and violated the plaintiff's right to portrait and reputation.

According to my country's "General Principles of Civil Law", the statute of limitations for petitioning the People's Court for protection of civil rights is two years. That is to say: if the right holder does not file a lawsuit with the People's Court in accordance with the law within 2 years from the date when he or she knows or should know that his or her rights have been infringed, the right holder no longer has the right to request protection from the People's Court. That is to say, the rights holder's right to win the lawsuit is eliminated. Therefore, in fact, Shi Yongjie's lawsuit has exceeded the statute of limitations stipulated by law and has no right to win.

7. The principle of honesty and credit!

I remember that in the "People's Photography" newspaper, an author wrote an article "A way to deal with portrait rights entanglements", explaining how he obtained the so-called "letter of authorization" from the portrait rights holder. . That is, after taking a photo of the subject, ask the subject to leave his name and address on a blank piece of paper, and an enlarged photo will be sent to the subject. In fact, the other side of the blank paper is a folded page with consent written on it. Make a statement like that. This kind of practice is really not advisable!

my country's "General Principles of Civil Law" and "Contract Law" both provide for "invalid civil acts". For example, Article 52 of the Contract Law stipulates that if one party concludes a contract by means of fraud or coercion, it shall be deemed an invalid contract.

At the same time, my country's "General Principles of Civil Law" also stipulates corresponding principles, one of which is: the principle of "voluntariness, fairness, equal compensation, and good faith", among which the "good faith" principle is called The "Emperor's Clause" here refers to: First, civil subjects must exercise their rights and perform their obligations in good faith in civil activities, and must not abuse their rights, harm the interests of others, or violate the interests of the state or society. . Second, the interpretation of the contract should be based on good faith. That is, when a court or arbitration institution interprets a contract, it should determine right and wrong and determine liability based on the principle of good faith. The third is to make up for the shortcomings of legal provisions with the principle of good faith. What is important is that on this last third point, the principle of "good faith" gives judicial officers a certain degree of discretion! That’s why people call it the Imperial Clause. That is to say: in the case of legal loopholes, the principle of good faith can interpret and fill the law.

Therefore, never try to be smart. You must know that "you will be misled by your cleverness."