Research On The Legislation Of The Right To Privacy In China

The more we think of the right to privacy, the more we find the close relationship between the right to privacy and humanity. The right to privacy represents a special kind of independence:When we are facing all the pressure from society, it helps us defend physical or spiritual autonomy and build a wall of dignity, which could not be defied, to block the whole world. Warren and Brandies advanced the right to privacy in 1890, which made significant influence. Today, the legal system around the world is appearing a tendency of the right to privacy being extending, which cannot be criticized,but it does not mean a stop for all the arguments.Centering on the right to privacy legislation in China, this thesis answers three key questions:Whether or not we need the right to privacy be legislated? If yes, how to define? How to design it? Based on researching on the legislative evolution of the right to privacy and distinguishing the different values between privacy and the right to privacy, we find that giving the right to privacy independent position and protection in law can pose a field for these existing interests of privacy and resist government power effectively. It also can make the persona in the general principles of Civil Law more plentiful, if we study from the angle of the skills of Civil Code legislation. What's more significant is that it can inject new humanity elements for modern people, as the right to privacy is a part of dignity and freedom. Therefore, the right to privacy being recognized by law is not only a certain request of effective protection of the right to privacy, but also an urgent need of building China's law system. On this account, constitution, administrative law, general principles of civil law, personality law and tort law are all given modern meanings.How to define the right to privacy is always the central issue in sphere of law-learning, but its key point is to define the object of the right. This can accord with the logic of law theory of specific personality's forming and it also can provide the foundation to analyze the conflicts of the right to privacy and other rights.Privacy is the object of the right to privacy, and it should be limited as privacy without illegal content. Privacy includes private messages and body. Body privacy has its uniqueness:directly spying on it does not have the meaning of message while making it public does. Privacy is subjective, personal, true, secret and developing. And based on that, the right to privacy is a specific personality which means a person can freely decide whether to make his own privacy public or not. Object being not monopolized by one right is the theoretical cause of making conflicts of rights, which is can be resolved by dividing the object. When designing the clauses of the right to privacy, we should use our local resources sufficiently. Looking backwards to traditional resources of native privacy,we will find the cultural reason of the big difference between Chinese native and Western modern privacy is there were no freedom,no equality and no selfish desire. But this cannot be an excuse of using Western standard to judge a culture good or bad. In the background of risky society, at the threat of swift developing of scientific and technological measures,on the basis of using the successful privacy legislative style of other countries for reference, on the basis of extraction of traditional resources of native privacy, the right to privacy is located both in public law and private law, should be protected by tort law and personality law and show up as specific personality. At last, this thesis puts forward a complete norm construction by using logical analysis method, aiming at defending human dignity and independent personality better.