On Personhood Property

This paper discusses with the existence of personality property which relates to the personhood interests based upon which concludes that personality property right shall be more strictly safeguarded than general property right and finally deliberates on the measures of reinforcing protection of personality property right.Introducing from a series of disputed cases of which personal property was impaired demonstrates that there is actually this type of right connected with the personhood of the right owner and could not be remedied by substitutes like marriage photos, portrait of parents, ashes of relatives and so on. These things are beyond the original nature of property which is useful and could be took advantage of as well as another nature which containing specific personhood interests. They are irreplaceable for the owner however might be meaning nothing to anybody else.This paper could be divided into four parts.Part one examines the development of conception of personhood and relationship between personhood and property. The idea of conception is abstracted into a sort of qualification which could be involved into the legal relationship in law. As a matter of fact, "personhood" is full of ethical significance incorporating elements of a human being and could be called as personhood in fact contrary to legal personhood. Followed by historical alternation, the connotation of factual personhood also changes. Person and personhood are theory of identity in Roman law; personhood is the basis of human being in the renaissance; human rights movement flourishes after the Second World War, iteration of ideas of basic rights, dignity and value of personality in the introduction of UN Charter. At the same time, the elements of personhood are gradually admitted, intensified under the increasing advancement of society and personality right of new type of right has established. Since the Enlightenment Age, western thinkers regard property right as extension of personhood which is protected through property protection in the legislations of many countries. However, with the progress of modern society, many countries set up comprehensive system of personality right. Personality right is of clear-cut difference from property right in order that people nearly ignore the close connection between personhood and property. In fact, personality right tends to melt with property right appearing personality right contained with property interests and property right incorporated with personhood interests.Part two investigates the basic and fundamental theoretical issues including the conception and scope of personal property as well as significance of property separation in angle of personhood. It is discovered in viewing property right in angle of personhood that person shall dominate outside resources for the actualization and property right is the indispensable form for the domination. The existence of property right is built upon this cornerstone. Thus, personal property indicates a type of property connected with personhood of which pains produced from lost and could not be remedied by substitutes. The scope of personal property is not that clear due to the abstract, ambiguous and extensive nature of personhood although this definition is comparatively specific. Person in personal property is the combination of the things and special environmental factors thereby personal property alternates in accordance with different persons. However, connection with the outside things could judged as good or bad thereby the relationship between shoe lovers and shoes shall be less in respect that the relationship between couple and wedding ring. Thus, not all property of which pains are caused by its loss connected with personhood could not be remedied by substitutes could be covered in the scope of personal property. Property like materialism of bad relationship between person and things shall be eliminated in line with the common sense of people. Property divided into two parts in angle of personhood shall have legal significance as follows: firstly, enrich the classification of property and intensify our understanding with respect to whether we shall adopt different protection and the diversification of property; secondly, personal property is a type of particular thing and the appearance of personal property conception refines and enriches the theory of particular thing; thirdly, personal property shall receive more strong protection than that of fungible property in order to shape the differentiation of stronger property and weaker property; fourthly, the ownership of personal property shall be arranged properly in the inheritance law.Part three tries to put forward some special measures in safeguarding personal property right based upon the research that personal property has enormous significance to a particular person. Law endows the property owner or user with right to maintain the social stability, increase social wealth and promote the social justice and fairness. It is certain that personal property right is endowed to the personal property owner or user. Personal property is totally applied to general protection approaches and remedy means in line with the property right. Meanwhile, the protection of personality right shall be stronger that that of other property rights based on the close connection between personal property right and personhood. The writer here hold that personhood interests within the personal property right shall be protected in the following aspects: firstly, endow the entity of personality relationship about particular property with priority. Personal property right contains personhood interests and indispensable significance for particular person. It is the full utilization of interests of things to assign the personal property right to the person with particular relationship in term of promoting the maximization of the interests of things; secondly, owner of personal property right enjoys mental compensation claim under the circumstance that personal property is damaged with losses of personhood interests. The victim not only suffered with economic losses but also mental damages when personal property right is invaded and this mental damages are severe than the property losses; thirdly, personal property right related to existence shall be absolutely safeguarded. Personal property could be separated into existent personal property and mental personality property in accordance with that whether the relation between personhood and particular person is existent or mental. Right to exist is the primary human rights and classical personal property right and shall be absolutely protected by law; fourthly, land expropriation probably harms property of homeland, graveyard or land-use right and the homeland and graveyard are the personal property discussed in this paper. The writer here think that personal property also shall receive more strict protection encountering with the expropriation acts from the public power. This includes that the government shall possibly expropriate fungible property and the government shall compensate the personhood interests' losses when the personal property is expropriated.Part four analyses the protection situation of personal property right from domestic and foreign levels. Swiss and Quebec put down homeland system in legislation and treat it as the personal property of groups and forbid the family member who is the owner or renter to dispose without the consensus of the other family members. America applies the robust privacy right to the protection of homeland indirectly although there is no similar regulation. In the area of mental compensation, France and Japan permit the compensation of mental damages caused by property rights infringement. Personal property theory evidently does not catch the eyeball of the theoretical and practical circle. The differentiation between properties has been noticed based upon which rule of kauf bricht nicht miete(the lessee's preemptive right over the leased) is established without introduction of personal property theory. The understanding of differentiation between properties is intensified that legal interpretation in 2001 has acknowledged in restricted sense although mental compensation caused by property infringement was not recognized before.One legal proverb expressed that compensation follows damages. Limited to the logical framework of traditional legal theory, the personhood interests within personal property right not only failed in sufficient protection beforehand but also could not remedied afterwards. This paper finally reaches a conclusion that the ignorance of actual interests in realistic life from the law because its own system and logics indicates that law betrays the life and betrays the original intention of law. Theory usually falls behind the practice and shall be in conformity with the practice in the end. Some countries have offered the particular protection to the personal property in legislation and judicial practice, and it is urgent for us to implement the comprehensive protection of personal property right as soon as possible.