On The Construction Of The Personality Right Constitutional Protection In China

In human society,as people is the main subject in various social activities.Through the study of personality,is the fundamental way to protect the interests.From the academic point of view,the research on personality right mainly focuses on the field of private law,and studies personality right from the perspective of civil law.But does the personality right have the nature of private law? the problem caused the attention of the legal workers,found only from the aspect of law for the lack of personality right protection,no defense from male rights violations.The first part of this paper is a summary of the constitutional protection of the right to personality.First of all,it is to clarify the concept of personality right by summarizing the relationship between personality,personality right.Secondly,through the law of historical research,this paper makes a historical study on the personality right constitutional protection.The personality right constitutional protection originated in Germany.Through the reflection on the trampling of human rights in Nazi Germany,Germany realized the lack of the personality right civil law protection and could not defend it in the face of the infringement by public power.How to realize the declaration of the protection of personality rights in constitutional documents,Germany first tried to examine the case from the constitutional dimension in the "Leser-Berief".It is reported that this is the origin of the personality right constitutional protection.After the "Leser-Berief",German theorists and judicial practitioners worked together to formally construct a complete set of the personality right constitutional protection in the "SorayaEnstchiedung" in 1973 through a series of precedents.The second part is the theoretical basis research about the construction of the personality rights constitutional protection in China.First of all,it studies the creation principle of the the personality right constitutional protection in China.The personality right constitutional protection belongs to the expansion of basic rights,which must follow strict procedures and be created by special agencies;it should be fully explained and clearly defined its scope of protection and its boundaries;and it should be carefully weighed in the whole system of basic rights when it is created.Secondly,combined with the reality,this paper studies the framework of the personality right constitutional protection.Clarify the basis of the personality right constitutional protection in China;study the protection provided by our constitution to the personality right constitutional protection.Thirdly,the comparative method is used to study the relationship between the personality right constitutional protection and the personality right civil law protection.The first is to make a comparative analysis to find out the differences between the personality right constitutional protection and the personality right civil law protection: one is public power,the other is private rights;the second is to analyze the promoting effect of the personality right constitutional protection on the personality right civil law protection;the third is to analyze the supplementary role of the personality right civil law protection to the personality right constitutional protection.The fourth is to study the function and value of the constitution of personality right in our country.This paper studies the function and value of the personality right constitutional protection and the significance of its research.The third part is makes a study on the enlightenment of the personality right constitutional protection in other countries to the personality right constitutional protection in China.First of all,it examines the personality right constitutional protection in Germany.On the basis of the personality right constitutional protection in Germany,this paper studies the framework of the personality right constitutional protection in Germany,and analyzes its nature.Through the continuous accumulation of precedents,as well as the theoretical and legal studies of experts and scholars,Germany has gradually formed a complete protection system of personality rights and constructed the personality right constitutional protection in Germany.Secondly,it examines the personality right constitutional protection in Japan.It is also based on its foundation to study its structure and analyze its properties.In Japan,the right to personality is not clearly defined in the Civil Code and the Constitution.At the same time,Japan studies the protection of personality rights from the perspective of constitution and civil law,which embodies the spirit of the personality right constitutional protection in legal precedents,and has the characteristics of the protection of personality rights in Germany and the United States at the same time.Thirdly,through the investigation of Germany and Japan,we get the enlightenment to the the personality right constitutional protection in China.Germany constructs a protection system with the basic Law as the core,maintains the openness of the extension of personality rights,and certainly provides protection for new personality rights through the final case of the Federal Constitutional Court.Japan perfects the personality right constitutional protection under the framework of the general provisions of the Constitution,while studying basic rights and civil rights and weighing them in specific cases.The fourth part is Some thoughts on the Construction of The personality right constitutional protection in China.First of all,it analyzes the necessity and feasibility of the construction of the personality right constitutional protection in our country.Through the research on the historical origin and judicial practice of the personality right constitutional protection in China,and the experts and scholars in our country have fully studied the personality right in the process of formulating the Civil Law,we have the conditions to construct the personality right constitutional protection.Secondly,draw lessons from foreign experience to construct the constitutional protection clause of personality right in China.This paper makes a tentative idea of the general provisions,special provisions and settlement rules for the conflict of basic rights in the personality right constitutional protection.Thirdly,it studies the promotion of the personality right constitutional protection by the improvement of the personality right civil law protection in our country.By perfecting the legislation of the personality right civil law protection in our country,we can promote the realization of the constitutional protection value of the personality right in our country.The personality right constitutional protection in China is to combine the characteristics of our constitution,stipulate the personality right in the constitution,and achieve the purpose of constitutional protection through constitutional supervision.