On The Nature Of The General Personality Right And Legislative Choice

After the introduction of the draft Civil Code LAC, the academicdiscussion of the moral rights legislation still does not cease. This paperaims to focus on the main line of the general personality right, starting fromdifferent angles, carefully sort, analyze, summarize and attempt to clarifythe nature of the general personality right, and put forward proposals aboutthe general personality right of the Civil Code legislative options.This article is divided into three parts, the introduction, body andconclusion.The first chapter studies the historical development of personality andpersonality right. Compared to personality right, personality has a moreethical significance. From the historical development of personality, we cansee that personality during the Roman period, with a strong level of identity,makes the biological and legal "personality" phase separation. During theFrench law period, affected by the pure rationalism and natural law thought,personality is based on ethical values determined by human reason,although it still has significance similar to the nationality of the public lawat the time, there is no difference in the ethical value above the law on theperformance of equal personality with a variety of identity and character ofthe people at that time. Personality enters the stage of the legal bodyprotection. During the Germany law period, through the surgery of legalcapacity, boundaries between the biological and legal person turn into legalcapacity, which pulled out of people's ethical value. From the historicalrespective, we can see that in modern civil law, the ethical values as men's internal things, are protected by the body protection, thus there is noconcept of personality rights. As time goes by, to protect ethical values, theway has changed from the "protection of the body" to "the protection of therights". The concept of General personality right arose.The second chapter discusses in detail the nature of the generalpersonality right in Germany and its relationship with concrete personalityright."General personality right" is not a precise concept. In Germany,according to Germany Basic Law, personality of freedom and dignity as afundamental constitutional right, has "subjective right "and" objectivenorms " the double properties. As a subjective right, its scope is limited tothe field of public law; as an objective value order, it requires thefundamental value of human freedom and dignity fully implemented in theentire legal system including the civil law. General personality right, whichwas created based on the objective value of the constitution, existing in thepersonal relationship, is a civil law rights. General personal right, is not atype of right, but a series of personality interests, which covers all possiblepersonality interests other than expressly provided by laws. As a result,general personality right includes concrete personality right, which is aspecial aspect or a fragment of general personality right,The third chapter reviews China's actual situation of personalityprotection and makes recommendations. The general personality right inGermany law, is the product of the specific period under certain conditions.China does not require this concept, which will cause conflicts with theexisting system of personality rights, also not conform to China's nationalconditions. The general personality right is not the only way to protectpersonality. In the case of general terms set in China's Civil Code,combined with the open-ended provisions of the law of torts, judicialpractice can direct refer to such terms in order to protect the personalityinterests outside the scope of the concrete personality rights.