The Study Of General Personality Rights

The General personality rights is the most important rights in the personality rights system. Relative to specific personality rights, it can safeguard people's social value and self-value and protect people's equality, freedom, dignity and security more comprehensively. However, this important right has not been clearly defined in the current civil law in our country. At present, while the Chinese Civil Code is being drafted, there are widespread concerns about the law of general personality rights. Based on theoretical research and the importance of civil legislation, the author formed the topics and idea of this paper. It is divided into the following chapters:Chapter one discusses the definition of general personality rights, which is the answer of"what are general personality rights". In this paper, based on the analysis of meaning, nature, characteristics, function, the general personality rights refers to a natural person legally entitled to the summary individual's fundamental rights, which include personal independence, personality equality, personal freedom, human dignity, and all other elements of personality. As the sources of specific personality rights, it decided and derived various specific personality rights. It has the functions of creating, interpreting and complementing the specific personality rights. The General personality rights have solved the undistributed types of specific personality rights. General personality rights is a flexible grounded rights, it may include and protect all the other personality interest which not be recognized and protected by specific personality rights is a fallback. Accounting to the history, the concept of the general personal rights is created by a series of cases in the judicial practice after World War II, based on Article 1 (human dignity) and Article 2 (personality development) in "Basic Law". The general personal rights make personal rights system further improved. The general personality rights had been accepted by a lot of countries now. It has important meaning in the maintenance of basic human rights, improving the personality rights system, realizing the full protection of the personality interests.This chapter made an objective analysis of the history on the emergence and development of general personality. The second chapter discusses constitutes of general personality rights. This chapter mainly discusses the constituent of general personality rights; they are subject, object and content. This paper argues that the subject of general personality rights is natural person. General personality rights equal belongs to every natural person, regardless of gender, age, class, race, geographical, political and religious beliefs, those who were generally members of society enjoy the general personality right, that is, every natural person is the subject of the general personality rights. Corporation is not entitled to the general personal right, because the corporate system is used to adapt to the economic development. Its purpose is to address the legal status of corporation, so that corporation can be the bearer of the civil rights and obligations as same as the natural person. Although corporation has the civil subject status and independent personality as same as natural person, but it is not a natural person, it can not be contained natural dignity, freedom, security and other basic values that be contained in the natural person. The general personality rights is the content associated with the natural physical equality, freedom, human dignity, ethics and other factors, these ethical elements are not contained by corporation. Therefore, corporation is not entitled to the general personal rights. In addition, the dead can not be a subject of general personality rights. After the death of the citizen, due to the elimination of the main body, which no longer has any rights, their human rights would cease to exist, thus can not be the subject of general personal right. The object of general personality rights is general personal elements. Because the object of personality rights is the personality factors, the object of specific personality rights is specific personality factors. Relative to the specific personality rights, the object of general personality rights can only be a general "personality factor." Due to the objects of specific personality rights have been identified, these specific personality rights have not been included in the general personality rights, so these objects of specific personality rights are not included in the general personality factor. Therefore, the object of the general personality rights is the personality factor which except the objects of the specific personality rights. These factors can be called"general personality factor". The content of general personality rights includes personal independence, personality equality, personal freedom and human dignity. Personality equality refers to the legal equality of the natural person. Personal independence is that a person is not dependent on other people to enjoy their independent personality, able to enjoy the rights and obligations, to participate in social interaction independently. The "personal free" in the general personality rights is an abstract freedom of personality, refers to an unrestrained, uncontrolled personality of natural persons. The meaning of human dignity is the rights of be respected by society and others based on the natural and social needs, and human dignity requires that everyone bears the obligation to respect others, the bottom line is not to violate the dignity of any person, or to bear the corresponding legal responsibility. Human dignity is the core of the general personal rights, but also the core of personality rights and human rights.Chapter three focuses on of the legislative model of general personality rights. In this paper, the author researches the legislative model of general personality rights from vertical and horizontal aspects. There are two model in modern civil legislation ---"People's ontology protection" model and "power protection" model. The civil law in modern France, Germany, Switzerland adopt "People's ontology protection" model that is to protect personality rights by protecting the "people" instead of a "power" means. Therefore, "the French Civil Code" does not provide personality rights; the protection of personality rights is based on its "Declaration of Human Rights" and the relevant provisions of the Constitution. In the "German Civil Code" only provides the name right, and protects life, body, health and other "life interest" in tort law. So "The German Civil Code" has not really established the personality rights system. Although the concept of general personality rights was created in Germany, but it was not provided in the "German Civil Code". "Power protection" model is adopted by modern national civil law. General personality rights is a universally recognized concept, more and more countries in their civil laws have adopted the concept of personality rights and legal protection by power means. China's "Civil Law" is also a "power conservation" model. It provided a set of special personality rights such as a natural person's life and health rights, name rights, portrait rights, reputation rights, honor rights, autonomy f marriage and human dignity. But the law does not clearly define the general personality rights. Referencing to overseas experience in civil legislation and the provision on personality right in Chinese Civil Law, this article suggests that the future China's Civil Code should adopt "power protection" model, and called for the personality rights should be compiled a separate part and general personality rights should be clearly stipulated in the Civil Code.Chapter four discusses the legislation of t the general personal rights in the Civil Code. The paper argues that Civil Code in China should adopt the "power to protect" mode. The Civil Code not only clearly defines various specific personality rights, but also clearly defines general personality rights. In this paper, the author thinks the full and effective relief systems means include personality rights claims, tort claims and the unjust enrichment claims. The author proposes Chinese Civil Code should establish an independent personality rights claims system, perfect moral damage compensation in the infringement claims and establish sound general personality applicable rules in the administration of justice. Proposed Civil Code should be improved in the spirit of tort claim for damages, should be established claim of unjust enrichment system and should be established applicable rules which improve the general personal rights.