Reserch On Legislative Model Of Personality Right Laws

During the institution of Civil Code, the legislation model of personality right aroused bitter controversy and the focus is whether personality right should be listed independently. Some hold that personality law should be a separate part of civil code. Some think personality right should be listed into tort law. Others view that personality right should be stipulated in the main system of Civil Code general principles. All these different views above result from the different understanding about the nature of personality right.The concepts of personality and personality right are closely related. The nature of personality right traces back to personality. Personality is just a concept of status as the criterion of people rank in the Roman law and it develops to be a qualification showing man is the legal subject after the establishment of"everyman is equal"and the combination of man in biological sense and legal sense during French revolution when it is replaced by"right competence"abstracted by the legislator in German law. The concept of personality has always been strongly controversial since its appearance. French people who are influenced by modern natural law think that personality right is the natural right of man as man endowed by the God; German civil law deny personality right because they deny the existence of"a right to oneself". Through the analysis of the connotation of personality right, the author put forward that personality right is not natural right but positive right, and it's civil rather than constitutional. Therefore, it shall be stipulated in the Civil Code. Regarding the model of personality right legislation, we can learn from other countries. We know that German and French people adopt the protection of the ontology model for personality right, which safeguard personality right from the aspect of protecting man, not from the right. Swiss put forward to protect personality right in terms of right for the first time and stipulate specific personality claim, which is definitely an innovation and beneficial for us. General Principles of the Civil Law of the People's Republic of China defines the personality right system, but doesn't cover general personality right and personality claim. It can only make effect by tort law after the personality right is offended, which obviously can't protect personality right effectively. As a result, it is necessary to have a study on general personality right and personality claim before discussing the establishment of personality right legislative model.Finally, the personality right legislative model is disserted. Based on the contrast of our three existing drafts of personality right, we can conclude that it is an inevitable choice to list personality into Civil Code independently. A design for personality right content in China is presented in Section II of the second part, which actually is detailed elaboration on personality right legislative model. That is, build personality right protection model by the establishment of general civil rights claim and general terms of personality right, the definition of personality right claim, the legislation of specific personality right as well as the stipulation of protection method of personality right and form the dual-track personality right protection system of protecting personality right as well tort law in parallel to protect personality right in the most comprehensive and favorable way.