On General Personal Right

Since modern times, especially from the Second World War, an increasingly wide concern has been drawn over personal right, resulted directly from the deep retrospection of Nazi's ignorance of human and vigorous development of human rights movement. In modern democratic countries, emphasis on human and great efforts made to improve personal status of human has been distinct. The most distinction has not only been the gradual expansion and strengthening of protection of personal right in legislation and justice, but also been the phenomenon what is called "the personal right is winning back the laurel from property right". In this progress, these efforts was obvious to all in civil law countries, which spared no pains to try every means within their existing legal system to protect personal right. Some countries extended the protection by adding particular personal right, while the others guaranteed personal right by defining it broadly to include all possible legal interests of the person. What has been most remarkable is the concept of general personal right, created and developed by the Germany judiciary in its own operation, relevant arguments and studies have never ended. However, no mature and perfect theory has formed over issues concerning the definition, nature of general personal right, its difference from and connection with personal right and particular personal right, its status in civil law, etc, which are left with the author to continue studying.It is generally agreed that china belongs to the civil law system following the tradition of codification of law. The civil law system has been characteristic of stressing statutes, in which rights are set down. Can only law recognize any interest as right. The classification and legalization of right limits the discretion of judges and prevent them from making law. Although law cannot be changed regularly to fit in with new types of civil right because law should be stable and authoritative, right itself can be relatively infinite and changeable, thus civil law system could be slow to protect new right by sticking to legal right. Now disputes concerning new personal rights have frequently emerged in current process of justice in china, like the right of virtue, right of privacy and right to mourn, etc, but no law has been made regarding particular personal right or general personal right, thus putting courts into embarrassment when hearing these cases. Despite that some courts succeeded in winning legal right and interest of the party by quoting legal theories, law has been inevitably challenged by reality for its blankness and defect. It has been a common notion in the legal circle that a concept of general personal right should be establish in law similar to those abstract and flexible concepts like the principal of fidelity and faith. Since now China is drafting civil code, it is the time when is the best for its establishment. Hence, it is practical and necessary to make a probe into general personal right at this phrase. This dissertation discusses relevant issues regarding basic concepts of general personal right.In the first part, the elementary constitutive factors are examined in general personal right, like personality and personal right. It is concluded that, personality is the qualification of being human being, natural and heaven-born. The law can only be made to recognize and become the representing form of natural personality. Since human in nature is a synthesis of natural property and social property, personal right has too numerous types to mention one by one and to make end by law, thus providing the realistic basis on which general personal right can be founded.Using the methodology of history, the second part studies different legislations in some typical civil law countries and regions like Roman, Germany, France, Swiss, Japan and Taiwan from the aspects of historical background, development and theories of general persona right. By comparing with Chinese legislation on right over body, the author attempts to give some ill...