On The Apology In Civil Liabilities

The apology is explicitly prescribed as a kind of liabilities by our civil legislation.although it is based on speech rather than on property,but it is difficult to be fulfilled in the judicial practice. Non-performance of the libility of apology would be detrimental to the majesty of the law,but the compulsory performance would not only fail to achieve the desired effect but also violate the defendant's human dignity. In order to resolve such paradox in the judicial practice,the core content of the apology would be analyzed firstly,then the reasons,shortcomings and other problems in the legislation of apology will be reviewed.At the end,the application system of apology will be set up on the basis of the experience of foreign legislation and judicial practice.Following the writing ideas above, this thesis will be divided into five parts.In the first part, this article points out the psychological moral foundation of apology is inflictor's feeling of guilt and repentance on the analysis of its connotation. In essence,apology which is a kind of self-considering care ultimately roots in conscience based on shame. And the core meaning of apology is to admit mistakes by the inflictor for violating the rights of the innocent.In the second part,the thesis first explores the reason why the apology is prescribed as a kind of civil liability from the angle of its unique functions,history etc,then discusses the disadvantages of apology in the process of implementation from the reverse side.The legalization of apology does more harm than good.The third part points out the liability content of the apology is difficult to ascertain in the judicial practice on the assessment of the legislation on apology. The court's practice of publishing the main content of judgments on the newspaper at best plays a role of rehabilitation, and can not substitute the fulfillment of the apology.The fourth part discusses the specific application of apology in foreign countries and Taiwan region in the legislative and judicial practice.It indicates that in most countries' legislation apology is considered as a manner of fulfilling the rehabilitation,rather than as a form of liability. And in their judicial practices, compulsory apology is unconstitutional because of violating freedom of conscience and human dignity.Part five reviews the inherent logical relations between apology and rehabilitation, elimination. Apology which is a manner of fulfilling the rehabilitation and elimination should be canceled from civil legislation. Based on the experience of the legislative and judicial practice at home and abroad,a legal mechanism for the application of apology is set up at the end of the article. The measure of apology should be used on the basis of defendant's own accord and plaintiff's request.And the civil legislation should establish an incentive mechanism of encouraging the defendant to apologize. The defendant's voluntary apology should be considered as a factor of alleviating his mental damage. Thus the special function contained in the apology will be realized, the conflict between the parties will be thoroughly resolved,and the harmonious and stable social order will be achieved.