The Improvement Of The Personality Right Of The Civil Law Protection

The legal system of China do not protect personal right well.I based on laws and regulations of China and juridical practice,so as to make comments and give advises of how to realize comprehensive protection of personal right.If we take a series of interrelated rights protecting a kind of right and interest rights and interests as a chain,and at the beginning of the chain is the original right,and at the end of the chain is the relief.The protection of personal right should follow the chain—from the original rights to the relief.But between the original rights to the relief,there is claims.When the original right is protected,we should protect both general personal right and the property interest of the personal right,general personality right and the concrete personality right,mental interests of the personal right and property interests of the personal right,so as to protect all the interest of personal right.When it comes to the relief of personal right,we should establish the claim of personal right,the claim of personal right and the claim of obligatory right,which also realize comprehensive protection of personal right thorough relief system.The first chapter mainly introduces the basic notion of personality right.The main content of this chapter is the definition of personality and personality right,and personality right which has the constitutional rights attribute,and the classification of the personality right.The purpose of protecting the personality is keep human beings full of human value,dignity and status,the definition of personality right should base on this purpose.Although personality right has the constitutional rights,we still can use civil rights to protect it.The second chapter focus on the general personality right protection.Concrete personality right and general personality right together make personal right and interest fully protected.When we use general personality right to protect the personal right,we should must strictly limit the range of general personality right protection,should take the personality equality,dignity and the personality freedom as the connotation.Only violations of the personality equality or the personality dignity or the personality freedom can become the behavior violations of the general personality right.Also we can't enlarge the scope of protection of the general personality right,which means we should distinguish the right and interest of status from the general personality right.Although the violation of the right and the interest of status and the general personality right can characterized as the infringement of personality value and dignity.The right and interest of status is derived on identity relationship,our courts should use which distinguishing from the general personality right.Although our country academic circles have disputes of whether unlawful is essential element of a tort,according to the typical cases which is published by the Supreme Court,fault and unlawful behavior and injury consequence and causality are essential elements of a tort behaviour which violate the general personality right.The third chapter mainly discusses the issues of personality right of property interest protection.The phenotypic spirit personality right has a property interest in business transactions,so it is necessary to protect the property interest of the phenotype spirit of personality right.The law and regulations of China do not admit the property interest of the phenotype spirit of personality right.Our courts also hold different views of the property interest of the phenotype spirit of personality right.But the supreme court of China actually admit the property interest of personal right.If the supreme court of China can publish judicial explanation which admit the property interest of personal right,we can use the article 2 and article 20 of the tort liability law build the protection of personality right of property interest.The fourth chapter focus on the relief of personal right.The claim of personal right and the claim of obligatory right together can realize comprehensive protection of personal right thorough relief system.Although our country has not build system of claims of personality right,both legislations and judicial practice do not admit claims of personality right,only academic scholars advocate to establish claims of personality right system.I do agree with academic scholars and we should establish claims of personality right system.Because the claim of personal right and the claim of obligatory right have different constitutive requirements.The claims of unjust enrichment can be used in the relief of violation the of personality right of property interest.At the same time,the court in the judicial practice in our country should also pay attention to the theory of balancing of interests.The general personality right and the concrete personality right,mental interests of the personal right and property interests of the personal right,the claim of personal right and the claim of obligatory right,can realize comprehensive protection of personal right,which based on laws and regulations of China and juridical practice,also can be used in practice.