On The Origin And Nature Of The Right Of Personality

This thesis consists of three parts—introduction, main body andconclusion.The introduction part aims at introducing the background andmotivation of writing this thesis, eliciting the problems need to bediscussed and solved in this thesis.The main body consists of four chapters, discussing respectivelythe vicissitudes of the personality and the position of personality inmodern laws, the origin of personal rights, the bewilderment confrontedby the theory of personal rights in modern laws, and the essence ofpersonal rights.In chapter one, beginning from Roman laws and following thesequence of the vicissitudes of civil laws in continental law system, thethesis explores the vicissitudes of the connotation and denotation of theconcept of personality in Roman laws, French laws and German laws,and reveals the historical transition of personality from the tools oforganizing identity in Roman laws to the symbol of equal rights in thequalification of legal subject in modern society. Moreover, after legalperson became the legal subject and the introduction of legal capacityinto the law, the concept of personality suffered a great impact. Thecommon use, mix use and abuse of personality and legal capacity are themain source of the misreading of personality in modern society. Onaccount of this, this part aims at distinguishing the relationship betweenpersonality and legal capacity, thus tries to lay the necessary logical andtheoretical foundation of the constructing of the personal rights theory.Chapter two mainly discusses the question that how personal rightswas accepted by positive law, that is, the origin of personal rights. Thehistorical transitions of personal rights and personality are quite differentfrom each other;in fact, they each went its own way at a certain period.Only when the modern law admitted the equality of personality of allpeople, could personal rights enter the legal field as the extension of theadmission of all people's personality, and could the essential relationshipbetween the two be established. What's more, by comparing the differenthistorical transitions of personality and personal rights, the thesis comesto the conclusion that "personality is the foundation of personal rights,and personal rights is the extension of personality", and also demonstratesthat why legal person do not have personal rights.However, the constructing of a theory would inevitably encounterthe challenge and bewilderment from the modern society, and the theoryof personal rights is no exception. In chapter three, the thesis analyzesand rethinks two bewilderments of the personal rights theory confrontedwith modern laws—whether general personal rights are rights, andwhether personal rights are in the process of deethcization. As a matter offact, it is more that the connotation and denotation of personal rights areconstantly being enriched and consummated as time goes by andtherefore revising the personal rights theory, than that the bewildermentconfronted by personal rights on modern laws are challenging thepersonal rights theory. Therefore, the decoding and clarifying of thesebewilderments are in fact supplying the necessary theoretical basis forunderstanding the essence of personal rights.Chapter four aims to elicit the essence of personal rights throughthe historical and positive analysis and theoretical basis of theabove-mentioned three parts. In this chapter, the thesis made a discussionmainly with regard to the principal part, the characteristics and theessence of the personal rights. The principal part of the personal rights isnatural person. As for its characteristics, the personal rights possesses thecharacteristics of equality, non-disposition, non-possession, and openness.And as for its essence, personal rights is a kind of right in the natural lawas well as in the constitution and in the civil law, and the relationshipbetween them is compatible but not opposite. The reason why personalrights could be enumerated in details is that it is more considered on thebasis of the determinacy of the judicial judgment and the definition of thefreedom and dignity of the person. Stylized mature personal rights couldpromote the efficiency of law and reduce the judicial cost. Moreover, thestylization of personal rights is the natural response of the development ofthe life logic to its requirements. What's more important is that the authorspares no efforts to make a systematic theoretical analysis andconstruction of personal rights is aiming to offer a referential idea forcompiling the civil code of our country. The author deems that in thefuture civil code, personal rights shouldn't be compiled separately andmerely set up from the perspective of "protection" of the law of tort andnot from the perspective of the right establishment. It is imperative thatthe personal rights system should be prescribed concretely under thesection of the natural person so as to enumerate the stylizationable"special personal rights" and to set up "other rights" items to maintain theopenness of personal rights at the same time, which can not only maintainthe self-consistency of theory on logic, and more importantly, is therequirement of the legislation of the personal rights from the modernsociety.Finally, the author draws a conclusion on the basis of summarizingthe whole text in the concluding part.