On Dominant Attribute Of Personality Rights

This paper consists of three parts:preface,main body,epilogue.The preface briefly describes research background,significance of dominant attribute of personality rights.The main body consists of five parts:personality rights,Herrschaftsrechte,the object of personality rights,dominant attribute of personality rights,limitation of dominant attribute of personality rights.In the part of personality rights,it first expounds the historical development of personality rights.After introducing definitions of Chinese and foreign scholars about personality rights,this paper argues that personality rights are refers to that rights which civil subject inherent in accordance with the law,personality factors as the object,maintain personal dignity or promote free development of personality that must have.Finally,this paper describes the historical evolution of the connotation of personality,analyzes the relationship between personality and personality rights on two levels,and argue that "personality" as the object of personality rights is actually not suitable, for it is easy to cause confusion.The second part of main body emphatically probes into Herrschaftsrechte,which is an important prerequisite for this article to be expanded.This part consists of three aspects:contention of meaning of Herrschaftsrechte,historical survey of Herrschaftsrechte,basic meaning of Herrschaftsrechte.There are differences among scholars about definition of Herrschaftsrechte.So to distinguish which definition is more accord with the nature of Herrschaftsrechte,it should sort out the history process of generation and development about Herrschaftsrechte.On this basis, this paper argue that Herrschaftsrechte are rights through which people can realize their intentions unilaterally upon the object without assistance of others’ intentions.Herrschaft can be divided into de facto Herrschaft and de jure Herrschaft.The third part of the body continues discussion on the basis of the second part,because if we want to have a deep understanding of dominant attribute of personality rights,we must grasp the object of personality rights.Firstly,this paper demonstrates establishment of the concept of personality rights through contradiction and arguments,aiming to lay foundation to demonstrate the object of personality rights.There are four main perspectives about the object of personality rights among academia in China:personality interests,personality factors or personal elements,people’s ethical values,personality.The paper argues that object is the foundation for establishment of rights.When specifically analyze the object of personality rights,we should grasp the object of personality rights hierarchically for its own characteristics.The object of general personality rights is personality interests,with spiritual values and property values,the former is primary,core value and the latter is subsidiary value.The object of specific personality rights is the embodiment of personality interests——personality factors.The fourth part of the body is the main content of this article, which is composed of five aspects.This part firstly discusses two viewpoints of scholars about dominant attribute of personality rights,and analyzes the reasons for their point of view.The paper argues that dominant attribute of personality rights should be understood on the basis of correctly grasping the connotation of Herrschaftsrechte.Dominant attribute of personality rights should be understood as a person may realize his/her intention without others’ consent or assistance in the process of enjoy,maintain,retain,utilize,dispose personality interests.On this basis,the paper respectively discusses dominant attribute of right of life,right of body,right of health,right of name, right of portrait,right of privacy,right of reputation.It emphatically analyzes the issues of suicide and euthanasia when explaining dominant attribute of right of life.In the modern society,the phenomenon about commercialization of personality rights emerges in endlessly,and there are several kinds of views about the attribute of commercialization of personality rights:personality rights,intellectual property,property right,commercial rights of personality,expansion of utilization competence of personality rights.The paper argues that commercialization of personality rights does not produce a new right,and it can be interpreted as the content of utilization competence of some personality rights.Therefore,it should be recognized that certain personality rights have dual attributes of non-property and property.Finally it analyzes dominant attribute of real right though ownership which is a typical representative of real right. Right is necessarily limited,but the limitation fundamentally limit the exercise of rights,rather than limit or deny the nature of rights.Therefore,personality rights and ownership both have dominant attribute.The fifth part of main body discusses the issue of limitations of dominant attribute of personality rights.Any right will be necessarily subject to legitimate limitations.Personality rights as a right will also be subject to legal limitations.The limitations are mainly embodied in general principles in civil law as well as the limitation of the principle of public interests in public law.At the same time,it should contain the phenomenon that people use the name of protecting public interest against realization of personality rights by the principle of law reservation,the principle of proportionality.Material personality rights and spiritual personality rights exist differences in such aspects of the object,the nature, the ethical value,so the two both have similarities and differences in limitation of dominant attribute.Finally the paper,combining with relevant international treaties,inter-regional treaties,laws of relevant countries,relevant provisions of civil law codes(draft) which Chinese scholars suggested,tries to put forward one provision about how to limit dominant attribute of personality rights in the future civil code for reference.The epilogue of the article gives a brief summary of the full text.