Discussing On The Separation Of Claims Of Personality Rights And Claim Of Torts

The claim of personality rights exists because of the need to protect personality rights.Claim of personality rights and claim of torts are two main claims when personality right is infringed.In the context of the independent compilation of personality rights,how to regulate the relationship between these two claims is an urgent problem to be solved.The author believes the claim of personality rights is an independent claim which is different from the claim of torts.It should be separated from the claim of torts and stipulated in the independent compilation of personality rights.The author demonstrates this view through four chapters.The first part is the differences between the claim of personality rights and the claim of torts.The claim of personality rights is a kind of claim of absolute right.Since personality rights is a kind of absolute right,everyone has a clear obligation to the obligee.When this obligation is not fulfilled,the obligee may request the other party to perform obligations according to the claim of personality rights.The function of the claim of personality rights is to realize personality rights.Tort is one of the causes of debt,so the right to claim for damages is the main part of Claim of torts.However,Decree of the President of the People's Republic of China provides for various forms of liability,therefore the claim of torts in China bears part of the function of the claim for personality right.This mode covers up the difference between the two claims.Claim of personality rights and claim of torts differ in concepts,legal nature,alienability and limitation of actions and so on.This is the legal basis for the separation of the claim of personality rights and the claim of torts.The second part is the phenomenon of the separation of the claim of personality rights and the claim of torts in civil law countries.When tort of the personality rights causes damages,the obligee can claim the right to claim for damages to receive the compensation for both property damage and non-property damage.Both France and Japan affirm parts of the claim of personality rights.Switzerland and China Taiwan affirm all kinds of the claim of personality rights.In Germany,the right of the real claim is applicable to applicable to the cases of general personality right.In a word,personality rights are protected by both claim of personality rights and the right to claim for damages in these civil law countries.Besides,the separation of the claim of personality rights and the claim of torts is the development trend of personality rights protection.The third part is the shortcomings of the existing model of personality rights protection.The author points out that there are some problems in the current protection mode of personality rights,such as the vague scope of damage compensation and the insufficient defensive protection.In the context of the independent compilation of personality rights,the separation of the claim of personality rights and the claim of torts can help to solve those problems.In the draft dated 16 December 2019,claim of personality rights is established in the independent compilation of personality right,and we can see a tendency that the comprehensive claim of torts becomes the right to claim for damages.The claim right to defense in tort compilation is preserved.The author believes that the relationship between claim of personality rights and claim of preventive tort is not the polymerization or the concurrence.Claim of personality rights can protect the specific personality rights and the Claim of preventive tort can protect the general personality rights to keep the personality right system open.