Study On The Normative System Of Right-Rization Protection On Personality

Personality is the qualification of a person to be a human being, refers to the ethical being of the person. The ethical connotation of personality represents human dignity and free development, reflected in equality, independence, freedom, autonomy and integrity. Personality protection aims at protecting people's ethical values, so that every person in the natural sense can possesses independence, autonomy and dignity, and be able to fulfill his self-will, play his own potential, and live a happy and decent life. Right-rization protection of personality endows people an absolute right for their personality——personality rights. As one of the personality protection methods, it did not emerge until the modern times. The normative system of right-rization protection of personality refers to the system posed by legal norms of recognition and protection of personality rights. Both constitutional and civil law recognize and protect personality rights under the modern constitutionalism. Other laws protect personality rights in the manner different from the means of empowerment, in which personality rights protection achieves by regulation and sanction of infringement of personality rights. Therefore, the right-rization protection of personality is a normative system which includes the relevant regulations of personality rights in the constitutional and civil law. From the angle of the normative system of right-rization protection on personality, this paper researches the basic theory and legislation of personality rights and draws the following conclusions:Firstly, personality refers to the ethical being of a person, personality rights aims to protect a person as a human being, not to protect him as a legal subject. In our country, the mainstream view confuses the personality with the legal subject. This confusion leads to a wrong conclusion that one person without personality rights or losing personality rights loses his legal subject as well. In fact, personality refers to a person's ethical being but not to his qualification as a legal subject, personality rights are rights to protect people's ethical value. In the sense of legal subjects, the word "personality" originated from legal technologies which constructed the civil subject with identities. This system of the Roman law gave legal subjects to certain identities, reflected the inequality of the legal status between people in the hierarchical society. French Civil Code based on rationality and natural rights directly endows all French people with legal subjects, however, it does not abstract rationality as general personality. The Kant's ethical personalism is the philosophical foundation in the legal subject system of German Civil Code, the personality in German Civil Code is essentially different from the personality in the Roman law because of ethical values of people. The natural person has these ethical values, so he is regarded as the legal subject. At the same time the judicial person is given legal subject because of the needs of social life. Although the natural person and the judicial person achieve unity on the point of enjoying rights and undertaking obligations, the natural personality's ethical value does not lose, and the judicial personality does not gain ethical value. The discovery of the natural person's ethical values refutes the theory which suggests that the legal subject is given by the state, and finds out that it's the ethical values which personality rights need to protect. The ethical being of people not only offers inherent basis for natural person's legal subject, but also is the starting point and destination of the personality protection.Secondly, personality protection in the civil law is the normative system which is composed by confirmation of the subject qualifications, empowerment of property rights, contract freedom and infringement remedy, etc. Personality rights protection which is endowed people with an absolute right is the key to personality protection. The ethical connotation of the personality is constantly being discovered and deepened in the civil law. The civil law initially regarded people as the existence which could not be divorced from the external world. People must depend on the material things in order to survive and develop, so the civil law were concerned only with people's connection with the outside world, and regarded people as legal subjects and endowed them with property rights, freedom of contract and violation relief. The civil law entitles the legal subject property rights which can not only maintain the survival and development of a person but also can improve his material life, at the same time recognizes the value of labor which reflects the dignity and freedom of personality. The civil law endows the legal subject with the freedom of contract, this freedom makes the legal subject independently arrange his social life, maximize the free development of his personality, and fulfill his personality independence and self-responsibility. The infringement remedy is given to the legal subject, and this remedy contributes to restoring the perfect state of the personality which has been infringed. With the discovery of ethical values which regards people as independent on the external world, the civil law rises the protection of personality to the right level, and a person is entitled to a general right in order to embody his dignity and free development.Thirdly, under modern constitutionalism the human dignity and free development of personality have become constitutional objective order of value, so the personality rights protection shows the trend of cnstitutionalized. For introspection of Nazis's abuse to human rights, constitutions in different countries rose personality rights to the height of the constitutional fundamental rights after World War ?. Personality rights in the constitution are not completely same as personality rights in the civil law because they aim at countering the state power, but they complement each other to compose the normative system of personality rights protection. The personality dignity and free development become the objective value of our Constitution, including the article38of inviolability of human dignity, the article39of inviolability of residence, the article40of law protection of freedom and privacy of correspondence, etc. Seeking normative protection in constitution entitles the personality rights the power to confront the infringement of the state power, so that personality rights can be protected by constitutional means, such as constitutional review, and personality rights can be fully protected. The objective order of values embodied on personality rights in the constitution and the third-party effectiveness of personality rights as fundamental rights require the civil legislation to convert the human dignity and free development into the general civil law. But not all the fundamental rights that embody human dignity and free development are able to achieve such a conversion. The fundamental rights which restrain the state can not apply to civil law relationships. Equality rights and freedom rights can apply to civil law relationships only under the constitutionality control of the court, as it will extremely invade the civil law freedom, so they can not be confirmed as an absolute right. Rights can be applied to civil law relationships are property rights, personality rights, inheritance rights, etc.Fourthly, under the normative system of right-rization protection of personality, this paper studies the basic theory of personality rights and finds out personality is ethical values of a person, personality rights reflect the rights to be a human being rather than rights to be a legal subject. The subjects of personality rights must be the natural person with ethical values, the legal person without ethical values are not entitled to personality rights. The object of personality rights is personality elements rather than personal interests. The power of personality rights embodies excluding others from interference and limited self-disposal, and is still the absolute right of civil rights. When the legislation of personality rights builds general terms and conditions the autonomy and integrity of the personality should be the foundation in order to safeguard the new type of personality interests which are not concreted.Finally, under the normative system of right-rization protection of personality, this paper finds out that personality rights in constitution can't apply to civil law relationship, and the personality rights legislation should convert the value of human dignity and free development of personality displayed by personality rights in the constitution into the civil legislation. This demands to recognize and protect personality rights through civil law ways, in other words to recognize and protect personality rights by means of statutory. Personality rights legislation should be coordinated with civil law protection system of personality, clear its meaning and scope in order to avoid infringing a general freedom of the other people. Personality rights legislation should be coordinated with normative system of personality rights protection in order to reserve channels of the application of other fundamental rights. Personality rights legislation should adopt the general terms and specific personality rights pattern. The general terms aim to protect human dignity and free development of personality, and protect the autonomy and integrity of personality. The general terms is to provide normative basis for the personality interests which are not included by specific personality rights, and the constitutionality control of the court to protect the other fundamental rights. As for the identification of specific personality rights, we should follow principles of legislation and categorization, and explicitly formulates their concept, connotation, scope, exercising boundaries and infringement ways.All in all, the personality rights legislation should be both scientific and forward-looking. The science part is intended to emphasize the establishment of consensus on the basic theory of personality rights, and to fully prepare for the personality rights legislation in theory. The personality rights law should be coordinated with the codification of the civil law, only in this way its implementation can effectively protect the human dignity and the free development. The reason for the forward-looking is more complex, at present the protection of constitutional freedoms and rights is a mere formality, at the same time there is lack of the constitutional review mechanism on the relief for the violation of the state power against fundamental rights, and the conflict and coordination of basic constitutional rights cannot get going. The protection of human dignity and the free development of personality has become the inevitable trend and ultimate goal of the development of the human civilization, although the constitutional system of our country still has a long way to go, there is nothing to prevent us from following this value-oriented system design in the theoretical study. Undoubtedly, this is an idealistic attempt, but this attempt can help to avoid short-sightedness of the legislation and the waste of legislative resources. Our civil legislation has had too many such failures, bless this wrong way can be avoided in the personality rights legislation.