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Personality, Personal Rights And Civil Code Of China

Posted on:2006-11-26Degree:DoctorType:Dissertation
Country:ChinaCandidate:X F CaoFull Text:PDF
GTID:1116360182456934Subject:Legal theory
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When Chinese Civil Code is being drafted,there are widespread discussions on whether this Code should be made,how should it be structured,and so on. Besides,whether personality rights should be set as one independent chapter is debated most hotly. Actually,this issue does not just involve its existence in form,but concerns such relations as relationship between civil law and person,between civil personality and legal personality, between personal rights and legal personality. Meanwhile, this issue also reflects our understandings of personality. We will focus on personality system in this dissertation because we want to make clear how the ethic of civil code should be carried out in both value and form, and how the care of civil code on the humanity should be revealed in a better way. The meaning of a person in civil code is always changeable, such process can be generalized as "person being nonperson-person being person-nonperson being person-this person being that person ",the process can also be characterized as from identity to contract shifted to from contract to identity. Behind these changes, the theory of personality is playing a unique role, and the concept of personal rights experienced from being neglected to being given much importance. Therefore, personality behaves as a method for civil law to approach the concept of a person and justifies the existence of human rationality and dignity. Personality reflects how law profiles a person and is a part of legal personality; its development reveals the change in attitude toward a person by civil law. Ancient Rome was characterized by identity, in which meanings of a person in natural and legal sense are clearly distinguished from each other, and the shift from the former to the latter should cater to the following condition. When natural person changes into legal person, Caput is necessary, which includes Status libertatis, Status civitatis and Status familiae. In such a society, Caput in Rome law was mainly a tool for maintaining public law order; hence, the maintenance of private law order was confined to individual possessions. The protection of such fields as life, body, health, and reputation belonging to Caput under modern standard by Rome law was rather maintenance of social and family order than concern for human beings. After the long Middle Ages and Enlightenment since Renaissance, the French Civil Code in 1804 firstly established the idea-of-human-is-human-being and eliminated identity, that the only reason for a person being legal person is because he is human. But since the Code liberated people just to fulfill the need to be against feudal system and to encourage capitalist free competition, so the significance and value were only confined the field of property. Based on the sole legislative premise of property-is-personality, protection of life, health etc. was concluded for the target of service for property, so the dignity of human existence was ignored. Since French Civil Code gave no concern for rights of personality, the important aspect of a personality, people were not liberated in real sense. A hundred years later, German scholars realized it was important for personality to improve personality and emphasize the existence of human beings as a goal under the influence of Kant. Unfortunately, Savigny and other historical legal groups alike rejected this understanding when drafting the German Civil Code. Until 1896, German civil code recognized that a person is a person, shifting the meaning of a person from natural sense to legal sense. Yet it was still incomplete that a person in legal sense was set as subject of rights in legal relations, the personality was considered as the ownership of other civil rights owning capability. Under the background of property law as main concerns, personality was ignored by legislators in German Civil Code too. It is Swiss Civil Code that fully exhibits the whole context of personality, in which it historically concluded that a person exists with dignity, which was not legally recognized yet. From the history of personality development, abstract personality in modern laws was established at the cost of regarding personality as possessions, for the pursuit and development of individual characters were shadowed by the occupation of possessions. Along with theadvancement of modern human right movement, human beings gradually began to rethink over the requirement and existence of themselves as subjects in society, and more contents such as real equity of personality, pursuit of personal dignity and the freedom of preserving and developing personality were observed. As a result, subjects of humans appear in civil law are no longer masked or disguised, and modern civil law is working hard to discover the context of personality vividly and exhibit what a real person is like. The value of personality to a person and the basic theory of personality right were explained by Kant, and Kant's theory expounds the essence of free will of human beings by recognizing the existence of moral rules and considering individual personality as the target for human existence. Since everyone has rationality and is born free, all human being are equal. Meanwhile, everyone has a duty to demand respect for his personality and protect of his personal realm because his existence is based on ration and dignity. On the other hand, every other man has the duty of respecting and protecting others'personality rights. In these mutual legal relations, the term of expressing respect to others is actually respecting and protecting personality rights, namely protecting others'ethic existence, thus personality rights have their ethic context and protecting such existence necessarily becomes a great human discovery. Such human dignity exists as a group of purposes, including personality independence, personality freedom, and personality equity and personality dignity. The above four coexist as one, revealing the general panorama of personality right, personality independence is premise for establishing personality right, Personality freedom is the basic and developing personality right and personality equity is safeguard for establishing and developing personality right and personality dignity serves as a core guiding the other three. In the meantime, since natural person and legal person are different from each other in existence, legal person has no personality rights and the rights of title and commercial reputation are discussed in property right. There are two patterns of legislations for personality rights: human subject protection pattern and legalization pattern; the former exists in French, German, Swiss legislations. With comparative analysis, considering theChina's legal reality and individual variety in modern society, we hold that recognizing the legalization of personality and stressing its legal right status aid legal practice and follow legal logic. At the same time, in order to solve the problem of system obturation due to legal recognition of specific of personality rights, we should accept the theory of general personality right to reveal the basic rights for personality in order to maintain the unification between civil law and constitution spirit while keeping the system open. After that, we have to inevitably decide whether to edit personality rights system into civil subject system or into tort law, or even to put it independently. Finally, we think that it should be the first choice for China's Civil Code to make the personality rights as an independent chapter, because it will logically and systematically exhibit the formal rationalism and value rationalism of civil code and China's legal reality best.
Keywords/Search Tags:Personality,
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