Public Orders And Borus Mores In Determining Of Infringement The General Personality In Judicial Practice

As the Socialist legal construction process continuously, people become to holdgrowing legal rights consciousness, and get more and more aware of using legal weapons tosafeguard their legitimate rights and interests. However, with the constant progress of thesociety, the interaction between people becomes closer and their relationship becomes morecomplex. At the same time, the disadvantages of rights protected mode of statute enumerationare also increasingly emerged. The original interests which exists only in the concept ofmorality cannot get the legal relief, and the new interests of personality arising under ourpresent life also can not be protected. To solve this problem, scholars have tried to set up ourcountry’s general personality rights protection theory system, with its object of generalpersonality rights. At the same time, judges indeed solve a series of disputes in this way in thejudicial practice. However, we should notice that no matter for theory system or practicalexecution, the definition of general personality rights of the imported goods has not yet cometo a unified conclusion, especially in the future legislation, how to distinguish the concepts ofgeneral personality right, human dignity and the concrete personality, how to judge thegeneral personality rights infringement, and how to achieve the fundamental relief of thegeneral personality in judicial practice, there still exists a big controversy. Thus, it isnecessary to combine the judicial practice to give an clear analysis on these issues.Under these conditions, this paper is based on case analysis. By streamlining the mainfocus of controversy, combining the theories of scholars at home and abroad with refereeresult of the same type of cases in judicial practice theory, this paper aims to give an answer tothese common problems faced by the judicial practice in cases of general personality rights.This paper takes the writing mode of case analysis and consists of four parts. Whereinthe third and fourth parts are the main content of the article.The first part is the focus of the case briefs and controversy. The focus of controversywill be summed up by the introduction to the basic situation of the case, and leads to the nextdiscussion.The second part revolves on the premise of the court’s case, thus refers to analyzing thebasic content of general personality rights. This section introduces the basic theory anddevelopment process of the general personality rights, and on this basis, analyzes differencesand connection between the concept of general personality rights with the concept of human dignity and concrete personality, thus to achieve the essence meaning of the generalpersonality.The third part of the article analyzes the Public orders and Borus mores principle, whichis mainly reflected by the judicial acceptance of general personality rights in the case. Also, itemphasizes on the important role and limitation of Public orders and Borus mores indetermining of infringement the general personality rights, and explains how to improvePublic orders and Borus mores apply in such cases in the judicial practice.The main content of the fourth part reveals the further reflection and thinking of thejudicial remedies of the general personality rights from the case: on one hand judges canprotect the general personality rights by the general terms of tort law when there have no clearrule; on the other hand, with the increasing demand of a certain right protection, protectiononly by the general personality rights can not meet the demands, and will even lead toconfusion. Therefore, the fundamental remedy is to type it into a right.