The Study On The Apology System Of Civil Liability Forms

As the important manifestation of Confucian traditional excellent culture, apology, belongs to the field of moral category, but is incorporated into the legal category. Since into the law, apology has played a great value on making up for the injured mental interests and building social as a diversified relief way. However, as a form of civil liabilities, apology has been questioned from the beginning. On the one hand, apology violates the constitution of freedom of speech and conscience, on the other hand, the compulsory enforcement forms of apology are deeply criticized by opponents. However, the apology incorporated into the Civil Liabilities system, with a dual advantage of certain legal norms and uncertain moral mechanism, not only inherits and carries forward the characteristic of ethnic traditional excellent culture, but also being of great significance for easing social conflict and construction of harmonious society.Therefore,the author attempts to study on the apology system of civil liability forms systematically from five aspects, the function of apology, the historical evolution and practice of apology in the law of our country, the legislation and judicial practice of the perspective of comparative law, the compulsory enforcement of apology and the way to improve the apology.The first part studies the connotation,theoretical basis and function of apology. First, starting from the concept, words constitute and scope of application of apology, it explains the connotation of apology. Secondly, it explains the theoretical basis of apology from the angle of philosophy, sociology and psychology. Finally, it elaborates the function of apology form the macro and micro levels, especially plays an extremely important role in terms of the spirit to make up for the interests of victims injured.The second part studies the historical evolution and practice of apology in the law of our country. First, before the end of the Qing Dynasty, the late Qing Dynasty, the Republic of China and the modern apology system of four different historical stages are studied by looking for the historical basis of apology, in order to provide reference for the modern civil law and future Civil Code of apology. Secondly, starting from 200 cases of judicial practice of personality right, though the study on the scope, manner and content of the judgment by the Court of apology, it shows the situation in judicial practice of apology.The third part studies the legislation and judicial practice in the view of comparative law. Through the UK, USA, Germany, Canada, South Korea, Japan and Taiwan of China, the legislation and judicial practice are studied, in order to analyze the causes of different attitudes to the apology of different countries and regions and provide reference of apology of our country.The fourth part studies the apology as a way of the compulsory enforcement of civil liability forms. First, through the re-define of concept of compulsory enforcement, it lays a theoretical foundation for the discussion of compulsory enforcement of apology of this article. Secondly, it cites current several compulsory enforcement forms of theory and judicial practice. Finally, using the principle of proportionality to analyze the compulsory enforcement forms of apology, we come to the conclusion that the apology can be enforced.The fifth part studies the way to improve the apology system of civil liability forms. The author attempts to improve the apology system from four aspects, the clear of applicable conditions of apology, the clear that apology does not constitute the admission of evidence law and apology can reduce the liability of the infringer, the great function of strengthening to apology.