The Nature Of Moral Rights Legislative Model Study

In the course of compilation of our civil code, there are drastic disputes on the pattern of personal right legislation. The disputes mainly focus on whether the provision of personal right should be separated. Indeed there are disputes on the character of personal right.Because personal right and personality theory are closely related, this article emphases on the essence of personal right and the pattern of personal right legislation from the meanings of legal personality. The whole article is divided to three chapters, six sections.Chapter one: from legal personality to personal right. It involves two sections.Section one analyzes connotation of legal personality and its vicissitude. Beginning from Roman law, the connotation of personality varies with development of economy and trend of thought. The personality in the Roman law reflects the status and identity of a person. In German classic philosophy, especially in Kant's ethic personality thought, personality is rational free will. Then the author analyzes three characteristics of legal personality: abstract, technical, and ethical.Section two introduces the history of personal right system and reveals its several trends nowadays: the expansion of protection scope; establishment of "generic personal right"; the development of spirit damages of personal right tort. Then the author introduces the reason of personal right system origin and points out the defects of due theory.Chapter two: the essence of personal right. It involves two sections.Section one analyzes the essence of personal right. Because personal right and ethical personality are closely related, right is divided to natural rights and acquired rights. Different from property right, personal right is a kind of natural right. Personal right has not an exterior subject matter. It is a kind of resisting right. Its function rests with maintaining the development of internal freedom and personality of a person and protects the benefits of private life. The characteristics of personal right involve: it's a natural right as well as a legal right; it's a constitutional right as well as a civil right; it's a right that can't be particularized.Section two analyzes generic personal right, corporation personal right, personal benefit protection of the dead that relate with personal right. The function of generic personal right isto provide a generic provision of tort law, which warrants judges free judgment power. The author thinks that corporation is not qualified to ethical personality and personal right. It's benefit can be protected though other systems. The author thinks the dead have not personal benefit, let alone legal right. To protect the benefit of the dead is to protect the public order and social benefit.Section three: research on the legislation pattern of personal right. It also involves two sections.Section one analyzes the legislation patterns and experiences of some countries, such as France, German, Switzerland, and so on. Overseas legislation experiences involve: personal right is not separated; extending the protection scope of personal right by establishing relationship between private law and constitutional basic rights to elevate the status of personality.Section two comments on legislation pattern of personal right. Starting with legislation trend of personal right, this article analyzes the reason that personal right is separated, the character of personal and legislation experiences of some countries. This article comments on the concrete content of two prepositional motions raised by scholars and the draft of the NPC Law Committee and brings forward some legislation advices.