Research On Bodily Right

Bodily right refers to a concrete personal right of a natural person safeguarding his bodily integrity and disposing his limbs, organs or other tissues. Since modern era, the statutes of almost all countries deem bodily right as the most important personal right, listed in the first order of the system of personal rights. With the change of the time background, especially the development of modern science and technology and medical science, bodily right in recent times has become a notable controversial issue within moral, political and legal discourse. Among them, recent scholarly debate has focused attention on the content, scope and force of this right concerning controversial modifications and surgeries, surrogacy, experimentation and dead bodies; however, the dilemma of the corresponding legal application highlights the significance of the academic study and legislation perfection concerning bodily right. The theoretical explanation of bodily right contains probing into the historical development source of bodily right, the definition of the connation of bodily right and the analysis of the structure of bodily right. Based on the said theoretical explanation, the construction of the legal system of bodily right involves exploring the legislation model choice and the specific system design of bodily right, which is inevitably inseparable from investigation of judicial practices in our country and reference from legislation and judicial experiences of foreign countries or regions. In the future Civil Code in our country, bodily right shall be stipulated as an independent personal right, and be defined as one of the material personal rights under the part of “personal rights”, and be listed between the right to life and the right of health, for purpose of manifesting the basic status of bodily right; only the natural person can act as the subject of bodily right, but the future personal interests of the fetus and the corpse of a dead person shall be fully protected by the law; the object of bodily right contains the body and the components thereof, and a given organ, tissue or substance implanted in the human body can also become the object of bodily right, even an isolated organ or tissue can be deemed as the object of bodily right, only if it is separated from the human body then incorporated there into, for purpose of safeguarding or realizing the bodily function according to the subject’s will; the content of bodily right contains both of the passive right of defending against the harm to the body and the active right of disposing the body; the compensation liability for damages to bodily right includes compensation for damages to property and compensation for emotional damages, and the compensation for damages to property shall follow the principle of full compensation, and the judges shall, based on the functions of compensation for emotional damages, refer to the infringement facts to determine the sum of the compensation for emotional damages; we can integrate bodily integrity damages and health damages into one independent cause of action to solve the concurrence issues of the claim rights for infringing upon bodily right and the right of health.