Study On Basic Theory Of Personality Right Issues

Roman law contains a simple philosophy of personality rights, and “with theremarkable feature of identity and grade”, the concept of personality was created. Thetheory of Natural law corrected the defects in Roman law which seems identity as astandard measure of personality, that is to say, the identity constraining to thepersonality had been got rid off from then on. Accompanied with development of socialhistory, philosophy theory and legal thoughts, up to the publication of “German PrivateLaw” by Gierke, the personality rights as an academic concept has been formed notonly from the basic construction of concrete personality right but the theoriesconcerning general personality right. Domestic and foreign scholars have conductedin-depth study of personality rights in terms of concept, characteristic, elements andcontent. Since its concept was produced form German judicial practice, personalityrights are divided into general personality right and concrete personality right inacademic theory. However, whether connotation or extension, both the concepts ofgeneral personality and concrete personality are still vague.Our theory of personality rights, which exists many academic arguments, comesfrom abroad. The First argument is about the system of personality rights. Concerningon the relationship among general personality right, personality right and concretepersonality right, there are two points of view: some one believed that personality rightsare abstract summarizes various specific personality rights, that is to say, therelationship of general personality and concrete personality is the one of the abstract andthe specific. The others believed that general personality and concrete personality aremutually complementary relationship. The second argument is about attribute of thepersonality rights, which are considered to be basic rights, civil rights or double rightsin different. Personality right is both a civil right and a constitutional right: consideringthe foundation of its produced, it is a constitutional right; thinking about empiricalmeaning and legal protection, its attribute of civil right should be confirmed. Onlyidentified by private law, could constitutional personality right be specified, andprotected fully and comprehensively and fully. The third argument is the nature of personality right. Different perspectives are presented on the issues about the nature ofgeneral personality rights: right, interest, legal provision, personality relationship, andevery view has their branches with different views or ideas respectively. The lastargument is about legislation of personality right, mainly related to transform thepersonality legal interests into legal rights, arrangement of personality rights in the Code,independent position of personality right in the Code, and cited rights and protection ofnew type personality rights.Recently, formulating the Code of Civil Law and personality rights has become ahot issue of civil legislation. Under the background of drafting Civil Code, the focus ofthis study is how to break the controversial theory of personality rights, how toestablished personality right by legislation and frame it reasonably. The Legislation ofpersonality rights, which has been approved in common, based on philosophy,jurisprudence and civil law. Based on the investigation of general personality on nature,legislation, function, judicial practice, the author advocates the abolition of generalpersonality; through the discrimination of concrete personality concept, and thesubstantive investigation of concrete personality, I believe that the concept should beabolished. With the premise above, this dissertation constructs the system of personalityrights. We consider " personality rights ", the general term for such right, as the topconcept, and treat it the same with civil rights, a corresponding concept. Its lowerconcept should include different personality right type, such as right to name, reputation,right to honor, right to life, right to health, specifically including personality rightsthrough legislative confirmation and judicial practice summary, while the personality oflegal interests summarized by theory could be protected through indirect measurementor general terms. In the respect of legislative selection, this dissertation would focus onissues such as right transform of personality legal interests, to what extent that legalinterest is transformed, the choice of private law confirmation, independent compiled inthe Code, exhaustive list of personality right and protection of new type personality. Inthe respect of legislative model, we argue to adopt the general terms of generalpersonality right protection instead of general personality, and personality rights typedmode instead of concrete personality. Both of the arrangement is in accordance with logical structure of personality rights system, and could achieve full protection ofpersonality rights.The future of personality right theory would come true and be confirmed finallythrough personality right legislation in the Civil Code. Under the previous system ofpersonality rights, our legislation would adopt "general terms of personality rightprotection+type terms" as a new legislative model, and fully realized protection ofpersonality rights and legal interests of the new personality. Independent compile ofpersonality right could achieve a better logic construction for the Civil Code, and abetter system for legislation. The specific design of institution should adhere to the"summary-detail" structure, that is to say, the general principle as a bracket unify itscontent applies to all types of personality rights, and the specific provisions would beconstructed according to typed personality rights. However, the issues on protection ofnew types of personality rights should be addressed by legal hermeneutics and judicialpractice.