Research On The Setting Up Of Damage Reparation System Of German General Personality Right

As the representative of the written-law system,German law is featured by codification.Against the historical background when Bürgerliches Gesetzbuch(German Civil Code)was written,general personality right failed to be included due to its associated limitation,so it has not been protected as an absolute right.However,a new research direction has been sparked after the failure of codification of general personality right,namely,the protection of special case law has been generated in legal practice with the development of the general personality right.In the chronological order,this thesis discusses the inception phase,development phase and maturity phase of setting up damage reparation system of general personality right based on the study of Damage Reparation.From the perspective of judicial adjudication,academic theory and legislation attempt,this thesis offers a clear presentation of development history,current status and development trend of general personality right system in Bürgerliches Gesetzbuch.In our country,the legislation of personality right is still underway.Many experiences and rules have been summarized in the judicial practice.When there is some difficulty in codifying these precipitated contents,this case law in Germany for the protection of general personality rights can provide our country with some new ideas.The main body of the thesis can be broken down into three parts: In the first part,in view of the background condition,it analyzes how German general personality right came into being and its predicaments.In the next part,in the chronological order,it gives a detailed argumentation of the legislation tendency,academic debate and legislation attempt of setting up Schadensersatz(damage reparation)system of general personality right.In judicial practice,there has been royalty fee,then consolation money which are both applied by analogy,and finally damage reparation money(Geldentsch?digung).In the academic circle,however,scholars have been putting forward different theories such as the initial disregard theory,reparation function theory,then the developed consolation function theory,penalty function theory.In terms of legislation,there have been three failures of legislation draft in the year of 1956 and 1957 respectively.The 1967/1968 amended and improved Schadensersatzgesetz(Damage Reparation Law)and the 2002 amended Zweite Entwurf Des Schadensersatzgesetz(Damage Reparation Law Draft II)both abandoned the codification of Schadensersatzgesetz of general personality damage.In the third part,it explores the enlightenment for China.This thesis offers a systemic research on this special German case law,which will shed some light upon the protection of general personality right in China.