Natural Person Nature Of Moral Rights

At present, we are marching toward the ambitious goal of constituting a practical civil code which meets the trend of the future. It is a great event in the legal field for not only legislators, jurists, law-officers, but also ordinary people. Being the focus of the attention, the constitution of the civil code provokes fierce controversies in China. The controversy over whether "the right of personality" should be legislated separately is particularly fierce. Jurists have conflicting opinions about this issue. It's not difficult to tell from their claims that the fundamental divergence between them lies with their different understanding towards the essence of the right of natural personality.Though the essence is multi-level and multifaceted, the author holds that in order to have a clear-cut understanding of the essence of the right of natural personality , studies need to be conducted on its historical development, its attribution to rights and its nature of being private law. Therefore, this thesis will explore the essence of the natural personality through semantic analysis, historical analysis, sociological analysis combined with comparative analysis.The right of natural personality is a historical category; therefore the study on its essence should start with tracing its history of development. The connotation of personality must be fully understood since personality is the foundation of the right of natural personality and there would be no natural personality without it. There are three kind of meanings about the personality: first, it means a kind of legal status; second, it is the capacity for civil right as is necessary for citizen in the law; Third, it is the concrete factor of personality. From the analysis, the author points out the foundation of the natural personality, that is basic to learn the essense of the natural personality. The needs to protect the personality produced t the natural personality, but only knowing the meaning of the personality is not enough, for different way to protect it always play a important role to the existence of the natural personality. People in the ancient time were not born equal, and they were divided into many ranks, and even got no idea of the the right of personality, regardless the value and dignity of a person. Restrained to the natural law, the modern civil law still couldn't break the traditional theory, thereby constructed the constitution of the people's own right.Confronting with the externalization of ethic and changing with conditions, the modern civil law has adopted a suitable way to protect the human right in the market system, from which personal rights has been noticed.The dispute on the attribute of the right mainly on "the negation of the right of natural personality "and "the legal interests of general personality ", and it might come back to the world one day though the former has been spurned by the history. Based on the analyzing of the predecessors viewpoints, the author summarized that the "the negation of the right of natural personality" ought to go to die. There are different understandings of "the legal interests of general personality " and some scholars take it as a kind of human right from the constitution. The author found it is nothing but the jurist's creation when the author studies the history of evolution of the right of general personality. After that, the author has also analyzed the homology and essences and then pointed the difference between the "rights" and "the legal intrests", so as to find they are tally with each other.It attracts the attention of the scholar that whether the essence of the right of natural personality is a constitutional right or a civic right. At present, there are three viewpoints in the legal field: First, the constitutional right, is represented by Professor Yin Tian, Second, represented by Professor Long Weiqiu, this theory persists the breakthrough of the narrow positivism of the civil law. The third is represented by Ma Junju, Wang Liming, Yao Hui, this school thought the personal rights are a kind of civil right based on the concrete personality factors. The author suggests that our country should adopt this thesis in our civil code as other countries do.The legal system was determined by the given life style and serve for the life itself, so different country has different legal system and personal rights is the same。Though we should consult the legal system of the developed countries, the most important thing for us is that we should pay attention to the tradition and the reality of our own country.