On The Protection Of The Right Of Personal Liberty In Civil Law

For a long period of time, the legal protection of the right of personal liberty is through the construction, the criminal law and administrative law. In General Principle of Civil Law, only rights of life and health, rights of name, portraiture right and some other rights are listed, and the right of personal liberty is oritted, which, undoubtedly, should be considered as a legalative negligence. Moreover, in the field of civil rights study, seldom does a scholar pay attention to the problem. It is necessary that the right of personal liberty be included and protected in the legislative system of personal right in order to protect natural person's right of persona] liberty from infring encent and to ensure that the victim can get effective civil relief.The thesis starts from the cases and statics of the infrigement of right of personal liberty, analyzing the existence of such infrigencent and the perplexity in judicial practice from various points. Is the right of personal liberty one civil right of the natural persona? If it is, what is its nature and content. Is there any theoretical foundation and practical meaning in listing the right of personal liberty in civil legislation? And when the right of personal liberty is infrienged, how should the constitutiue factors be determined and relief be offered?In the first part of this thesis, we start from the definitions of liberty and the right of liberty, and provide a definition of the right of personal liberty accordingly. The right of personal liberty refers to the right of citizens to enjoy physical and operative freedom legally without illegal restriction and interference.In the second part, the theoretical foundation and practical meaning of the establishment of the right of personal liberty is analyzed. The basic right of personal freedom stated in the constraction should be enjoyed by citizens and protected by Civil Law. As the law of rights, Civil Law demands substantial euality and freedom, and thus determines that the basic and important right of personal liberty should be recognized. Meanwhile, the set-up of this right meetes the requirements of the establishment of a socialist legal state, helps to promote the over-rail development of people as well as solves the problems in practice.In the third part, we make a study on the legislation of the right of persoal liberty home and abroad. The stipulation of the right of persoal liberty has already existed for a period of time and the right of persoal liberty is protected from the construction to civil law in the legislation of foreign countries as well as in Taiwan and Macao. The establishment of the compensation system of mental injury and the exemption clause of infringement of the right of persoal liberty in these regions can be drawn upon by us.In the forth part, we analyze some problems related to the protection of the right of persoal liberty. It is an infriging act to infringe on the citizens' right of persoal liberty and such infringement accords with the constitutive factors of an infringing act, which include: the victim's physical and mental freedon is restricted or controlled; the action itself breaks civil law; the actor does this deliberately or mistakenly; and there is a causal relationship between the restriction or control of the victim and the illegal action. The right of persoal liberty consists of exemption clauses, such as the agreement of the victim, self-satisfied action, legal regulation and act of rescue. The civil responsabilities include stopping of infringrment, appoligizing, and compensation for losses, mainly for mental injury.In the fifth part, we discuss the weaknesses of the protection of the right of persoal liberty in our country. The right of persoal liberty is not clearly defined in the civil legislationand is only mentioned in judicial interpretation. And the compensation for mental injury is not stated in law of criminal procedure. On the basis of such a situation, we should regard the right of persoal liberty as a concrete personal right in the persoal right part of Civil Code in the future on the one hand. On the other hand, we should include the right of persoal liberty in the system of compensation for mental injury accoding to the mental compensation stated in Mental Compensation Interpretation of the Supreme People's Court and make such a system clearly defined. The infringement of victim as a result of crime which coordinates with the law of criminal procedure should be permitted to ask for compensation specially, in order to attain the goal that the infringement losses resulted from severe criminal actions can get civil relief.Nowadays, the rights of people are emphasized , the awareness of personal rights is developing and legal sense is being strentheded. It is required that scholars in the jurisprudential circle pay more attention to the right of persoal liberty, and make it an independent personal right in civil legislation.