The Institutional Changes Of Legal Personality And The Protection Of Personality Right

The individual exists as an independent entity and his personality denoted in law changes and develops with the time rather than staying still. The personality right has a direct relation to the system of legal personality whose connotation and extension develop with the time. Therefore, the relationship between the personality right and the personality system is always changing and this changing relationship brings about the disputable issue for the legal theory and practice of how to define the nature and scope of rights that are determined by the factor of the individual's personality. To clarify the relation between the personality right and personality system is significant for both legal theory and legal practice. In view of this, this paper discusses the problem from the perspective of institutional development of legal personality and elaborates it from the following aspects by adopting the comparative analysis and other methods.The first part of this paper analyses the legislative practice in Roman times of legal personality, family and the individual's legal status. Based on the analysis, this paper defines the legal personality under the legislative model of the Roman times as technology-based legal personality which insists that the family should be the main adjustment object. The individual here is not the subject that the law is concerned with, thus he has no personality right. At the same time, this paper briefly analyses the trend of the individual's development in law: the individual is gradually emphasized in law and becomes the independent legal subject.The second part studies the theoretical preparation for the transition from technology-based legal personality to traditional ethics-oriented legal personality since after the collapse of the Roman Empire, life, freedom and other ethical factors which give emphasis to the independence of the individual are taken into consideration with the influence of Christianity and humanism. Life and other factors as the ethical elements of personality are only acknowledged in legal theory, thus in this phase, the individual is still not regarded as the independent legal subject who enjoys the personality right in legal practice.The third part, based on the theory of the transition from technology-based legal personality to the traditional ethics-oriented legal personality discussed in the previous part, introduces the typical countries of codification: France and Germany and their achievements and internal features of legal practice in terms of ethics-oriented legal personality. In this stage, the personality factors such as the individual's life and freedom are recognized by the legislation and the interests indicated by the individual's personality factors are guaranteed from two aspects by the law in the form of codification. This paper also analyses the characteristics of personality right's protection in this system of legal personality. Besides, French and Germany were faced with some theoretical and practical difficulties in defining the scope of personality right in the process of codification and they did not provide sufficient legislative guarantee for the personality right when they established the ethics-oriented system of legal personality.The fourth part analyses the traditional ethics-oriented legal personality's legislative practice of concerning the individual's life certainty. It treated life and other personality factors as the objects that could not be disposed and accordingly the individual could not have sufficient protection of rights in law as his personality factors changed with the times. This paper further elaborates that since life, science and technology are taken into account, the nature and scope of the individual's personality right should realize the transition from defensive rights under the traditional ethics-oriented personality's legislative model to the autonomy under the modern ethics-oriented personality's model.The fifth part mainly enumerates the typical legislation examples in the contemporary time to explain the new rights proposition of the individual in legal practice. For the individual's proposition of autonomy in terms of the personality factors, this paper centers around German related legislative practice to discuss this problem and then points out that to acknowledge the individual's autonomy in terms of his personality factors is a common practice among different countries in the legislation of personality. For the individual's active claims under given circumstances, this paper discusses it by taking the euthanasia's legalization as an example and analyses different countries' attitudes toward the legislation of euthanasia and the trends of legislation. It can be said that to establish the modern ethics-oriented legal personality and to protect the new personality right of the individual are on the one hand, the individual's reasonable demands for the law's development, but on the other hand are trapped in traditions.Conclusion: Based on the analysis of the development trend of legal personality system and the individual's rights in terms of the personality factors, this paper aims to suggest that the lawmakers should be concerned with the changing intension and extension of the legal personality and provide legal support for the individual's personality interests since this is the only way to realize the sound development of law and the individual.