On Constitutional Basis Of Personal Rights Of Civil Law

Human dignity has become a universally recognized constitutional value in a modern country ruled by law.To improve the legislation of personality right and promote the protection of personality right are the common expectations of all legal persons.This issue has been widely concerned by Chinese scholars.Especially after the adoption of the General Principles of Civil Law on March 15th 2017,the personality clause in the General Principles of Civil Law has become the focus of scholars as they all write articles to express their views.When it comes to the system of personality right in the field of civil law,we have to talk about the system of general personality right in Germany.Due to the complicated reasons of legal philosophy,legislative background,legislative technology and so on,the German Civil Code does not protect the personality right through legislation.Other more abundant personality rights are generally protected by Section 2 of article 823,"other rights" under the tort law system.Also due to the complex historical reasons,several attempts to make up for the right of personality in German Civil Law have also failed.In contrast,due to the reflection of Nazi atrocities in World War ?,the German Basic Law,which was born after World War ?,placed the protection of personality rights as an important position.At the same time,what is worthy of our scholars' attention and research is that Germany has not ignored the protection of personality rights in civil adjudication because of the lack of civil legislation on personality rights,on the contrary,through a series of typical cases,such as "Reader's letter case","Recording case","Solaya case" and so on,the judges of the German court have constructed a unique "general personality right system" in the course of judicial decision.The theory of objective value order of fundamental rights developed by the German legal theorists provides a theoretical basis for the injection of the spirit of personality right into the civil law.This is taken as the starting point to carry out the research:The first part of the article discusses the rules and its defects of German Civil Code for the right to personality,and the German Basic Law's protection of human dignity,the importance of the following analysis of the real law for the study of groundwork.The second part of the article focuses on the construction of the general personality rights system in the process of six typical cases,including the Fderal Republic of Germany Supreme Court and the Constitutional Court of the judgment,analysis of the Court's decision ideas.The third part of the article studies the logic of the German court to construct the general personality right.Firstly,the objective value order theory of the basic rights is analyzed,and the theoretical basis of the constitutional regulation and control of the civil law in the field of personality right is clarified.Then how the German courts improve the connotation of the general personality right step by step is explored,boundaries are cleared,and the case weighing method of universal applicable value is summaried.In the fourth part,the personality right system of our country is studied,and the construction path of the personality right in the civil law of our country is sorted out,and the similarities and differences between the two countries' personality right protection are found through the comparison with Germany so as to perfect the enlightenment to the protection of personality rights from the practice of Germany.