Constitutional Analysis of the Personality Theory of Civil Law
Liu Zhigang *
Abstract: The word “personality” has various connotations, which essentially reflect people's thoughts on personality in different periods? The transformation of personality in a civil aspect to the personality on the constitution aspect has negative effect on the personality system of the civil, which is of great value to develop the civil personality rights system in order to facilitate the connection between the civil law, the constitution and the public law? The capacity for rights not only separates the relative independent personality rights of civil law from the personality system of Roman law, but also promotes the emergence of the constitutional personality rights and its return in the field of civil law? The nature and orientation of personality rights in civil law has an important influence on civil legislation? There are three ways to realize the constitutional rights of personality in our civil law: civil legislation, constitutional interpretation and general personality rights?
Keywords: personality · right capacity · civil personality right · constitutional personality right · constitutional analysis
There are many ambiguities in understanding the connotations and nature of personality rights and the relationship between civil personality rights and constitutional personality rights in academic circles, and this has had some negative impacts on current civil legislation and civil trial work in China. In this paper, the author analyzes and demonstrates the theory of personality rights in civil law from the perspective of constitutional law, in order to consolidate the origin and promote the parallel development of the theory of personality rights in the two fields of civil law and the constitution as well as the smooth movement between each other.
I. The Civil Law Value of the Transition from Personality as the Civil Subject to the Right of Personality in the Constitution
A. “Subjective” personality in ancient Roman Law and its functions
Civil law scholars have different understandings of the connotation of “personality”. Most domestic civil law scholars believe that personality, as an abstract legal concept, mainly has three meanings, namely, the subject of rights, the capacity of civil rights and interests protected by law. 1 The author believes that the connotation of the word “personality” is different in different historical periods, and the pluralistic understanding of the connotation of personality is actually a reflection of the influence of the personality system on people’s thought in different periods. From the perspective of the vertical historical development of the personality system, in different stages of development, such as identity, rationalization and universalization, the scope of the legal person is constantly changing, which not only reflects the intergenerational change of the personality system, but also highlights the evolution process of personality system from barbarism, arbitrariness to civilization and humanity. 2 In different historical periods, the function of the personality system endowed by law is different, which determines its different faces in different times and places.
In Roman times, because of its political and economic system, natural persons in the political, economic and social aspects were not equal. However, the development of commodity economic relations requires the subjects to participate in commodity economic activities independently and equally, and have full capacity of rights and behavior. There was a clear conflict between the inherent requirement of equality in the commodity economy and the obvious inequality of social reality at that time. In order to reconcile this conflict, the “personality” system was designed to separate the legal person from the biological person and to meet the equal requirements of the legal person, that is, the fact of the inequality of natural person with “personality” as the civil subject in the commodity economic exchanges was obscured by the legally fictitious equality, and the equal transaction based on social inequality is thus possible. The “personality” in the Roman law therefore possesses the connotation similar to “civil subject” in the vision of later civil law scholars. However, the problem must be noted: the personality system in the Roman law is still in the stage of perceptual knowledge, and there is still a big gap between the personality system and the civil subjects defined in today’s civil law. For the ancient Romans, the so-called “subject qualification is both a qualification and a real right. This is quite different in purport from the practice that modern civil law equates natural persons with civil subjects and separates the qualification of the subject of rights from the acquisition of actual rights”. 3 In addition, because the personality in Roman law is associated with certain specific identities, and the rights possessed by the natural person with personality are not limited to civil rights, the personality system of this period although it contains the implication of civil subject, it is not a pure concept of private law in nature, rather than combining the category of strong color of public law, with its function in public law even greater than that in private law. In ancient Roman law, having a certain specific identity was the prerequisite for obtaining legal personality. Having a legal personality was the basis for the enjoyment and exercising of certain rights. The identity that decides whether a person had personality included freedom, citizenship and family. 4 Those who possessed freedom, citizenship and family had a complete legal personality, and could enjoy and exercise various rights prescribed by the law. On the contrary, the lack of a legal identity will lead to deminutio or even loss of personality, 5 incapable or unable to fully enjoy and exercise the rights granted by law. Because of the logical correspondence between identity, personality and the implementation of legal acts and the enjoyment of legal rights, personality not only acquired the status of the civil subject as a precondition of implementing civil acts in civil law, but also in fact is used as a tool to mark the identity of natural persons. Ancient Ro-man rulers tried to mark the “persons” in the legal arena through the legal “personality” system, and selectively allocated them to the relevant individuals according to the differences in people’s identity. Although this system solved the conflict between the legal equality inherent in the commodity economy and the inequality of the real status of human beings in what was a slave society to a certain extent, it also assumed the function of distinguishing the identity of natural persons in fact. 6 Some scholars have pointed out that the basic value of the personality system in the Roman law was to “distinguish the different social statuses of natural persons”. In essence, it is “a legal technical tool for some people to oppress others”. 7 In this way, the system seems to have some anti-human characteristics. 8
B. The change of “subjective” personality system to natural person with “rationality” and its civil law value
After entering the Middle Ages in Europe, with the establishment of the feudal identity, the personality system carrying the function of identity in Roman law lost the necessity for its continued existence and it gradually died out. Compared with identity system in Roman law, personality in the Middle Ages was no longer regarded as the qualification of (civil) subject, but equated with human beings. However, due to the restriction of the feudal hierarchy at that time, people’s private law status was very different. Factors such as gender, identity, guild membership and religious affiliation affected people’s legal status to varying degrees. There is a strong logical correspondence between the acquisition of certain property interests and certain specific identities, and therefore legal personality was not equal. This is different from the practice in ancient Roman. Of course, this does not mean that the idea of subject’s personality having equal status was completely lost in the Middle Ages. Because of the influence of Christian theology, the concept of personality, which carries the spirit of equality of subject status, still existed on an ideological level. Moreover, because of the dominant position of Christianity in medieval Europe, this concept integrated the thoughts of most Europeans, thus fostering a common cultural basis for the formation of modern personality concept in Europe. Through the extensive promoting of its teachings, Christianity not only established the thought of human dignity as the philosophical basis of Western European anthropology after the Middle Ages, but also gave birth to the concept of personality in modern society. Regrettably, the concept of human dignity, which bears the thought of human dignity, is difficult to realize in the transformation from philosophical concept to realistic legal system in the feudal social order characterized by the system of identity in the Middle Ages. As the theoretical front of the concept of modern personality, the idea of human dignity naturally could not realize the structural connection with the concept of human dignity at the level of the legal system, it only had a certain degree of influence on people’s thinking in the religious and moral sense. 9 Based on this, from the second half of the Middle Ages until the emergence of the modern legal system, although the concept of personality was often mentioned, it was mainly a philosophical concept, rather than a legal one. 10 The structural relationship between personality and civil subjects exists more in people’s academic thinking than in the system level. In the early stage of the development of modern capitalism, influenced by the Enlightenment Movement and modern natural law theory, Western capitalist countries began to reflect on the concept of personality from the institutional level because of the changed political and economic environment. In this period, the “personality” in people’s minds was no longer associated with a certain specific identity as in the ancient Roman period. The presence or absence of personality no longer depends on some element outside the human body itself, but is structurally interconnected with a certain inherent quality of human beings, that is, “rationality”.
The School of natural law held high the banner of “rationality” and waved the banner for defending human dignity and natural rights. It not only led and promoted political change at that time, but also had a profound impact on the national legislation after the change. For legislators, it was their duty to separate rational and responsible persons from the various identities under the old system through their own legislative activities, to liberate citizens from the authority shaped by various identities in traditional society, and to grant all rational citizens equal rights. 11 Because people are generally rational, everyone has personality equally. It is worth noting that “personality” in the new era is no longer a legal term that expresses the concept of subject stipulated in the mixed public and private law, but a legal category stipulated in constitutions and the legal areas such as civil law affected by it. Moreover, in the early constitutions and laws of Western countries, the term “personality” was not directly stipulated. The concept of “subject” previously carried was inherited by a new category of “person”. This is particularly evident in Article 1 and Article 2 of the French Declaration of Human Rights of 1789 and Article 8 of the French Civil Code of 1804. Compared with the past period, the “personality”, which has dual attributes of public and private law, had undergone substantial changes in the new historical period: not only was the condition to acquire “personality” transformed from a certain specific identity to a natural person, but also the carrier of “personality” had dual separation, being stipulated by the Constitution and civil law separately. The civil law significance of this transformation and separation is very far-reaching. The reason is that the subject of obligation pointed to by constitutional rights refers to national public rights organs, including the legislature, and since persons as subjects of rights are equal to each other, and the purpose of their political integration is to protect their natural and constitutionally recognized basic rights, the state cannot establish a civil subject system contrary to this in the civil code, which has no possibility in civil law as the similarity to the “subjective” personality system associated with certain specific identities in ancient Roman times. As a result, not only the scope of civil subjects could be expanded structurally, but also the purity of the civil acts they act for were greatly improved. Thus, the space for civil law adjustment was obviously expanded, and the development of commodity economy also took place in a broader context.
C. The generation of constitutional personality rights and its value compared with civil personality right system
It is worth noting that, although the subject carrying rights stipulated in the French Declaration of Human and Civil Rights and the French Civil Code is “human” without external conditions, because of the influence of “rationalism” advocated by the enlightenment and classical natural law schools, the “human” as the subject must be a person with “rationality”, so those “passive citizens”, “women” and “dependent persons” who do not have “independent rationality” 12 were not included in the scope of “people” stipulated in the Declaration on Human Rights and Civil Rights. They could not enjoy the rights stipulated in the French Constitution, and thus could not be the subject of rights in civil law. This limitation of the scope of “human” caused by the respect for “reason” was not only a defect in the French constitution, it also had a negative impact on the civil legislation aimed at expanding the scope of civil subjects in this period. Fortunately, the “rationalism” stance pursued by the enlighteners and classical law-of-nature school was criticized by Rousseau and Kant, 13 which promoted the emergence of the right of personality with the core of human dignity in the constitution. In Rousseau and Kant’s philosophy, it is not “rationality” but “willpower” that is the measure of whether people have personality. Personality is not only logically related to people with “rationality”, but also to people without “rationality”. The decisive factor affecting the existence of personality is not “reason”, but “will”. As a natural person, he may not have “reason”, but he must have “will”, and people with “will” have personality. Hans Hattenbouer, a German scholar, has made a penetrating interpretation of the concept of personality in Kant’s philosophy. 14 Hattenbouer believes that since personality and rationality are not logically related, they are based on the existence of human beings, so all members of society actually have the same personality. The essence of the so-called legal equality is the equality of personality. It is clear that Hattenbouer has keen insight into the deep influence of Kantian philosophy on the personality theory of law, and his view is profound. However, as a legal person, it is obviously not enough to limit our perspective to this. We must further examine the internal relationship between Kant’s philosophy and the constitutional right of personality centered on personal dignity. In fact, Kant’s philosophical idea 15 that man himself is the purpose is the philosophical basis of respecting human dignity in positive law. Under the infiltration of Kant’s thought, he also believes that the core tenet of modern legal system lies in “being a person and respecting others as human beings.” 16 Obviously, Hagel’s view contains respect for human dignity. The philosopher’s ideas are undoubtedly of positive significance for us to establish a personality right with personality dignity as the core in legislation and even constitution, but unfortunately, the value of personality dignity was not valued by the legislators in the 19 th century in the movement of codification in European countries, and there was no specific stipulation of personality dignity in the code. Since the end of the 19 th century, this situation has gradually changed. In the civil codes of some European countries, there gradually appeared content concerning personality rights and interests, and even abstract personality rights. The German Civil Code of 1900 and the Swiss Civil Code of 1907 are the typical representatives. Article 28 of the latter defines the general provisions for the protection of personality rights from the legislative level for the first time, 17 thus forming another model for the legislative protection of personality rights. The provisions of personality rights and abstract personality rights in the civil codes of European countries, on the one hand, expand the scope of civil rights and interests traditionally understood by people, on the other hand, they objectively also play a role in restricting and restraining national power, “restricting the functions of government to the legal field of recognizing and enforcing private rights”, 18 thus promoting the emergence of constitutional personality rights and further producing an effect of renvoi on the system of “subject” personality in civil law. As some scholars have pointed out, “Private law itself is a constitution before there is a constitution. After there is a constitution, the basic concepts, spirit and system of private law have become the foundation and prototype of the constitution, and have been sublimated and implemented into all other legal departments through the form of constitution as a fundamental law?” 19 Of course, the formation of constitutional personality right is not only due to the promotion of civil law, but also due to the statutory law. However, there is no doubt that the system of personality rights in civil law can promote the formation of constitutional personality right.
After the end of World War II, based on deep reflection on the trampling of human dignity by the fascist regimes, European countries began to reflect on the necessity of respecting and safeguarding human dignity at the institutional level, seeking to regard it as the core value of the national legal system. Article 1 of the Basic Law of the Federal Republic of Germany of 1949 regards respecting and guaranteeing human dignity as the primary obligation of all state organs of power. This provision was undoubtedly of positive significance in preventing the infringement of the national power on the personality rights of natural persons and avoiding the reemergence of Nazi tyranny. However, its value is not confined to the field of the Constitution, and the system of personality rights of civil law gained institutional impetus.
The reason is that according to German constitutional theory, basic rights are both “subjective rights” and an “objective law”. As “subjective rights”, basic rights give citizens the rights to make positive appeals and negative defenses to the state organs of power, 20 as “objective laws”, basic rights are regarded as “objective value order” that the state organs of power must consciously abide by, and they must create conditions conducive to the realization of basic rights as far as possible. 21 The former mainly exists constitutionally, while the latter has had great influence on the legal system including civil law. If civil law wants to play its role to the greatest extent, it should not only ensure its logical self-consistency, but also ensure the smooth movement between it and public law. Obviously, it is not enough to achieve this goal only by relying on the internal cultivation of civil law itself. It must rely on the integration of the Constitution on the whole legal system, including public law and private law. Karl Larenz has made a penetrating exposition of the relationship between German basic law and civil law. 22 As basic rights, the constitutional personality rights naturally have the nature of a “subjective right” and “objective law” similar to other basic rights. Compared with the civil legal personality right system, its value is mainly embodied in the “objective value order” it bears and establishes for the basic law. However, its nature as “subjective rights” has the same significance for the protection of civil legal personality rights. Based on the nature of “subjective rights”, the constitutional personality rights decomposes the “personality” system in the sense of “subject” from the institutional level, completely destroys the possibility of the revival of the “personality” system carrying the function of identity cutting in Germany, realizes the complete coincidence of a “natural person” and “legal person”, maximizes the scope of a civil subject, and constructs a solid institutional foundation for the development of a commodity economy and the realization of private law autonomy based on it. The realization of the autono- my of private law based on it has established a solid institutional foundation; based on the nature of “objective law”, constitutional personality rights realize the institutional integration of the personality right system in civil law as private law and the personality rights protection provisions in public law such as criminal law and administrative law, and through the technical means of the presupposition of referral clauses connecting public law, constitutional control and interpretation of public and private laws in civil law, neutralize the potential conflict between the system of personality rights of civil law and the compulsory norms of public law under the guidance of the provisions of personality rights of basic law, realize the smooth movement of civil law and public law in the protection of personality rights, and ensure the full realization of the system of personality rights of civil law. From this point of view, the confirmation of personality right in German Basic Law actually marks that the system of personality rights of civil law entering a new stage.
II. The Technical Transformation of Personality as a Civil Subject in the Field of Civil Law and Its Constitutional Value
A. Technical transformation from “personality” as a civil subject to “capacity for civil rights”
Among the various understandings of the connotation of “personality” in the academic circles, the capacity of civil rights to regard it as the legal qualification of the subject of rights is one of the most important aspects. Many scholars in the field of civil law hold this position, 23 but different views also exist. 24 According to textual research, the concept of capacity for rights first appeared in the Austrian Civil Code drafted by scholar Franz-von Zeille. 25 Subsequently, in his “contemporary law system”, he defined the concept of “capacity of rights” and made a distinction between it and the concept of competence. 26 For the first time, the German Civil Code transforms the capacity of rights from a theoretical category into a legal term, which is defined as the essential attribute of human beings in law. According to the German scholar Larenz, the right capacity refers to the ability of a person to enjoy civil rights and undertake civil obligations. 27 In short, it refers to a person’s qualification as the subject of legal relations. According to the foregoing definition of Lorenz, the capacity of rights is the same as the connotation of personality in Roman law. German academic circles do not understand this very well. Scholars who put forward representative views in this field include Gierke, Hiilder 28 , Fabriciushe, Gitter, Larenz and Medicus. 29 The author holds that the term “civil right capacity” in the German Civil Code is completely synonymous with the personality existing in the ancient Roman law, and the former is actually a new concept of “subject” generated on the basis of technical replacement of the latter. Compared with the personality of the concept of “subject” in ancient Roman law, “civil right capacity” has abandoned the public law content of the concept of “personality” in the ancient Roman law, and thoroughly cut it off from the logical relation between specific status and identity, thus making it a pure civil subject concept in civil law. The emergence of this category in German Civil Code is related to the position of civil subject system in civil law and the special social background of that period. As a specific legal category in civil law, civil subject is “the subject of rights and obligations in private law”, 30 which is a person or organization that participates in civil legal relations, enjoys civil rights and undertakes civil obligations according to law. As the primary basic issue in civil law, the civil subject system plays a very important role in civil law, and is the basis for other systems to develop. Therefore, the civil subject system is often regulated in the civil code of civil law countries as the primary issue. 31
In ancient Roman law, the “personality” system bears the function of the civil subject. It is actually the "equality" of the legal status of the natural person in the "unequal" social status. Its purpose is to adapt to the needs of simple economic development of slavery. In the middle ages, because of the feudal system in Europe, the feudal hierarchical identity system was very obvious. The ancient “personality” system based on the simple commodity economy of slavery did not have the social foundation to revive. In the early stage of modern capitalist development, influenced by the influence of enlightenment and classical natural law school, the French Civil Code established on the basis of free capitalist economy connected the civil subject with the “rational” Frenchman structure. 32 It is worth noting that the civil subject system in the French Civil Code is based on individual as the center, and the civil subject qualification of legal person is not recognized. 33 With the development of capitalist commodity economy, aggregate corporations, especially corporations, have emerged in large numbers. The previous civil subject system based on individual has gradually shown its limitations. There is an urgent need to establish a new civil subject system in civil legislation that can accommodate both natural and legal persons. Under this social background, the civil subject system (personality system) associated with specific identities in the ancient Roman law has once again attracted the attention of Europeans. Through archaeological excavation, Germans excavated their personality theory from ancient books and records, and used it as a means of law to make selective use of it and create a social organization with a main personality character, that is, a legal person. 34 The German Civil Code, when creating the personality of the group, consciously drew out the ethical attributes contained in the personality system, replacing the “personality” as the main body in a legal system with purely technical capacity for civil rights of no ethical color, so that it only carries the connotation of the subject qualification of private law, and no longer has the qualification of public law subject. Through the aforementioned technological transformation, the new legal personality, namely the right capacity, no longer carries the ethical feelings in the personality system, and can be applied to natural persons and legal persons at the same time. Starting from the German Civil Code, the civil subject system has gradually shifted from the individual-centered monism model established in the French Civil Code to the dualism model which includes both natural and legal persons. This was great progress in the development of the civil subject system. Since then, every country has followed the German model and established a dual civil subject system.
B. The constitutional value of the transition from personality to capacity for civil rights as a civil subject
The concept of “capacity for civil rights”, created in the German Civil Code, has technically broken down the “personality” system as a civil subject as in the ancient Roman period. The qualification and rights of the main body are no longer mixed up like those during the period of the ancient Roman law. Persons (natural persons and legal persons) possessing the capacity for civil rights and qualified for civil subjects, have been technically separated from the rights of personality with and as a result of the qualification of civil subjects. For the first time, personality rights have acquired an independent appearance compared with civil subjects at the level of empirical law. From this point of view, the concept of capacity for civil rights plays a great role in the formation of civil personality rights. Of course, we must also see that the personality rights of life, body, freedom and health are inseparable from those of natural people. 35 If the aforementioned rights are lost, natural persons cannot be regarded as civil subjects. Only in this way can scholars question the value of rights and abilities compared with natural persons. 36 Although this view is reasonable to some extent, it only highlights the different subject attributes of natural persons compared with legal persons, but it cannot be a reason to deny the value of rights ability compared with natural persons in civil law. As mentioned above, the important contribution of right ability lies in the technical decomposition of “personality” as a civil subject and “right” as its carrier, which provides a broad institutional space for the generation of personality right in law and the development based on it. It seems that it is not an objective position to ignore it. More importantly, the role of capacity for rights is not limited to this,but also has more far-reaching significance of civil law and constitutional value based on it. From the civil law’s point of view, since the capacity of rights not only decomposes a pure civil subject, but also a relatively independent personality right which is logically related to the former, it can remedy the damage suffered by the victim through tort law, and consequently protect the civil which has logically related to the former. Subjects have institutional possibilities. On the other hand, if the subject qualification and the personality right are still mixed together as in the ancient Roman law, because the subject qualification itself emphasizes only the equality of personality and the capacity as a civil subject, there is no right to exist outside it, and the reason for applying the system protection by tort law is not enough. It must be pointed out that the pure civil subject decomposed by the power of rights is not limited to natural persons, but also human beings. Personally, the ownership of what people can do is obviously a derivative of the design of the legal person system. The aforementioned standpoint can be used to interpret the protection of natural person’s personality rights and the reasons associated with it as a civil subject, and can also be used as the basis for the protection of legal person’s personality rights and legal person’s subject qualification. Admittedly, there are many ambiguities in understanding the personality rights of legal persons in academic circles. 37 However, as long as we can see the inherent relationship between the personality rights of legal persons and the subject qualification of legal persons, and distinguish the conductive influence 38 of protecting the personality rights of legal persons compared with protecting the subject qualification of legal persons, all kinds of doubts about the personality rights of legal persons will be pale and weak under the scouring of the necessity of protecting the subject qualification of legal persons. Based on this, the author further wants to affirm the position that the capacity of rights not only decomposes two pure civil subjects, but also, more importantly, puts different types of civil subjects on a completely equal position, thus building a solid institutional foundation for the development of private law autonomy. Indeed, the realization of autonomy of private law depends not only on the equality of subject status, but also on the freedom of contract aimed at regulating the order of civil subject behavior. However, if there is no equality of civil subject status, the freedom of contract cannot really be realized. From this point of view, the civil law value of the capacity for rights seems to be not limited to the decomposition of the “personality” system, the formation of pure civil subjects and independent personality rights. Its more far-reaching value of civil law lies in its contribution to the autonomy of private law.
From the perspective of the constitution, due to the technical decomposition function of the right capability, the civil subject has been molded into a pure private law subject, which no longer has the same public law color as the ancient Roman “personality” system, and as such no longer bears any liability in public law. Its private law function has been highlighted. However, this function of private law is related to the value of the Constitution. The protection of personality rights by tort law not only consolidates the civil subject on the basis of existing civil law, but also has a conductive effect on restraining and restricting state power. The equality of civil subject status based on the capacity of rights not only establishes the basis of private law autonomy, but also makes civil society develop independently and excludes public power. Illegal aggression and intervention in the field of private law also provide the possibility. Obviously, the role of the capacity for rights has gone beyond the field of civil law, and has a connotative impact on the Constitution. Of course, the restriction of state public power can not only rely on civil law, but also on the system of personality rights in civil law. It must be noted that the Civil Code is weak in resisting the invasion of civil society by the political state. The main reason for is that the purpose of the Civil Code is not to divide the boundary between the political state and civil society, but to construct the internal structure and order of civil society within the framework of public law. The responsibility for defining the boundaries between the political state and civil society is borne by the Constitution and the public law system affected and integrated by it, which should not be structurally transferred to the Civil Code. This not only shows some romance, even arrogance, but also obliterates the boundaries of functional orientation between the Constitution and the Civil Code. The ultimate result is that the private law order cannot be established. 39 As far as the system of personality right of civil law is concerned, it certainly has a certain conductive effect on the state public power. However, it is impossible and should not be entrusted to the structural responsibility of civil law for the protection of personality right, which should be borne by the constitution to restrict and restrain the state power. The correct way is to establish personality right in the Constitution and endow it with the function of subjective right to resist illegal infringement by state power, so as to provide institutional support for the realization of autonomy of private law. In view of this, the right ability not only separates the relatively independent civil law personality rights from the “personality system” in Roman law, but also promotes the emergence of the constitutional right of personality, and its constitutional significance is profound.
The constitutional value of the right ability is not limited to this, but it also plays an important role in the return of constitutional personality rights to civil law. As stated earlier, the personality right separated from the right ability is related to the person as a civil subject. Its scope is relatively narrow, and it is limited to the specific personality rights such as life, body, health, freedom, name, and reputation, and so on. 40 However, under the impact of the rapid development of modern science and technology, the types of violations of personality have diversified, and the field of personality infringed has been obviously expanded. The former scope of personality rights has been unable to cover the increasingly diversified demands of personality rights and interests. Moreover, the logical relationship between the newly emerging personality rights and civil subjects is looser, and they are more and more connected with personality dignity, so that even by analogy, the rights and interests of a new personality cannot be included in the traditional scope of personality rights. In this case, the constitutional personality right is logically injected into the general provisions 41 of civil law through judicial interpretation of judges, 42 forming the so-called “general personality right” in civil law. Thus, not only the scope of personality rights can be expanded, but also the value integration function of constitutional personality rights to civil law can be realized on the premise of maintaining the integrity of civil law system and self-consistency of its own logic. As a result, from the perspective of tracing the origin, it seems that the system of capacity for rights is inadvertently presupposed.
III. The Nature Orientation of Personality Right in Civil Law and Its Impact on Civil Legislation
A. Orientation of the nature of personality right of civil law
The nature of personality right of civil law is a controversial issue in the field of civil law. The determination of this issue has a direct impact on the development of a series of issues in civil law legislation. The author intends to analyze it from three aspects.
First, is the right of personality in civil law a right? There are two main standpoints: (1) Negative opinion. This view holds that the right of personality should not be regarded as a right, otherwise, it will lead to the confusion between the subject of right and the object of right. 43 (2) Positive opinion. This view holds that the object of right can be directed not only to the things beyond the person, but also to the person himself. The reason for denying the right attribute of personality right is mainly due to its purely philosophical speculative theoretical premise, that is, “right is the legal connection between human beings and things outside of human beings”. 44 In my opinion, as far as personality rights are concerned, life, health, body, freedom and other personal rights and interests as the object of their rights are inherent in human beings, but this does not affect the right attributes of personality rights. Of course, we must also see that there is an inherent logical relationship between personality rights and civil subjects, whose nature is quite different from real rights, creditor’s rights and other civil rights, so, the provisions of personality rights in civil codes of various countries are mostly scattered in the general principles of civil law, personal law or tort law, but they are not regarded as a kind of civil rights parallel to real rights and creditor’s rights.
Secondly, is the right of personality of civil law a natural right or a legal right? Some scholars have pointed out that rights are the dominant power and interests given to the obligee by law, and their nature is legal, while the personality rights of life, body and freedom are naturally enjoyed by the natural person and the natural person based on the fact of birth. Although the state can impose restrictions on personal rights such as life, body and freedom by law, natural persons do not have to be recognized by law before they can enjoy these rights. If the aforementioned personality rights such as life are regarded as legal rights, they are in fact equivalent to denying the natural attributes of such rights, but can not explain their origin and essence. 45 From an intuitive point of view, the aforementioned viewpoint does make sense to certain extent, but the crux of the problem is that the viewpoint only highlights the characteristics of personality rights such as life, body and freedom, which are quite different from civil rights such as property rights and intellectual property rights, and can not deduce the conclusion that it does not need to be confirmed and determined by law. Although the above-mentioned specific personality rights are endowed by heaven, it does not mean that they only exist in people’s rational thinking space, do not specifically appear in real life, and therefore will not incur infringement from others. On the contrary, they not only exist in real society, but also face the intrusion from others from time to time. This kind of intrusion not only endangers the right to personality itself, but also endangers the existence of civil subject qualification associated with it, and then impacts and affects the civil law order based on it. Therefore, it is necessary to institutionalize the protection of personality rights such as life, body, health and freedom through legislation. Admittedly, the institutionalized protection of personality rights does not necessarily mean that it should be confirmed and defined through legislation (such as the French Civil Code), but it should not be forgotten that the recognition and protection of personality rights are related to the protection of other people’s freedom of conduct, and local protection of the former necessarily means excessive suppression of other people’s freedom of conduct. Vice versa. Therefore, in the process of protecting the personality right, we must insist on the eternal theme of seeking a more appropriate balance between protecting the personality right of natural persons and protecting the freedom of conduct of potential infringers. It is obviously impossible to achieve this by emphasizing the nature of personality rights and relying on courts to neutralize them dynamically. In addition, we must also see that personality right is a kind of collective right, which shows continuously with the development of the times. It includes but is not limited to the personality rights of life, body, health and freedom. On this basis, other specific personality rights derived from it, such as the right to know, the right to credit, the right to life tranquility, and so on, are not as logically related as the former. It’s obvious. Some scholars of civil law have made a penetrating exposition of the recent derivation of personality rights and the gradual departure of human ontology. 46 Therefore, the internal logical relationship between the traditional right of personality and the qualification of the natural person as the reason for emphasizing the nature of the natural right of the personality right seems to be biased.
Thirdly, is personality right a civil right or a constitutional right? The mainstream view in domestic civil law circles holds that the personality right of civil law belongs to civil rights in nature. The main reasons are as follows: firstly, it is difficult to protect personality rights comprehensively through the constitution; secondly, the constitutional system of our country determines that it is difficult to realize the full protection of personality rights only through the constitution; thirdly, the lack of maneuverability of protecting personality rights according to the constitution; fourthly, recognizing personality rights as civil rights also means defining the positive protection obligations of the state. That is to say, the state should protect the interests of personality through legislative and judicial means. 47 In this regard, some scholars hold a negative position that personality rights should be constitutional rights in essence. There are complex reasons for the concept of private right of personality right, which include: firstly, the privatization of personality right originates from a narrow legal positivism concept; secondly, the decomposition of personality elements supports the private right of some specific personality rights technically; thirdly, the generality of constitutional provi- sions inevitably leads to the necessity of creating some specific personality rights in civil law; Fourthly, the privatization of personality rights provides the theoretical basis for the privatization of personality rights. 48 In my opinion, when defining the nature of the personality right of civil law, we should separate it from the constitutional personality right and distinguish the specific personality right from the general personality right. From a historical point of view, various specific personality rights in civil law have created conditions for the emergence of constitutional personality rights. Conversely, the personality dignity and personal freedom stipulated in the Constitution have laid a foundation for the development of the system of Civil Personality rights. 49 However, this does not mean that the constitutional personality right generated under the influence and promotion of the civil personality right is a civil right. Similarly, it does not mean that the nature of the civil personality right originated from the constitutional personality right in the constitutional era is a constitutional right. As subjective rights, civil personality rights and constitutional personality rights are independent of each other, and they play an important role in their respective space fields; as an objective value order, constitutional personality rights have a value integrated effect on Civil Personality rights, but this does not mean that the nature of civil personality rights will change substantially, it is still a civil right in essence. Of course, it must be pointed out that the aforementioned position only refers to specific personality rights. The nature of general personality rights is not civil rights, but constitutional rights. The reason lies in the fact that the connotation of the general personality right is highly uncertain. If it is defined as civil rights, it will inevitably give the court the right to determine its excessive discretionary power, so that the people are in a state of being liable to blame. It is difficult to guarantee the right of the natural person and maintain the freedom of the public. Balance. On the contrary, if it is defined as a constitutional right, it can logically inject the spirit of constitutional personality right into the field of people’s law through the institutional stirring of judges by relying on the relevant provisions of civil law. While expanding the scope of Civil Personality right, it can realize the value integration of Civil Personality Right and maintain the smooth line between civil law and public law.
B. The influence of the nature and orientation of the personality right of civil law on civil legislation
The orientation of the personality right of civil law has an important influence on civil legislation, which is mainly manifested in two aspects.
1. The impact of the nature of natural rights and legal rights on civil legislation
Natural rights theorists believe that rights are legal, while personality rights such as life, body, health and freedom are innate human rights that come from birth and are beyond rights. They are totally different from civil rights such as real rights and creditor’s rights. They are not legal rights at all. They are not necessary and should not be regulated by legislation. Affected by it, the French Civil Code of 1804 did not contain any provisions on the right to personality, or even any wording related to personality. This situation had hardly changed substantially until 1970. Of course, this does not mean that there is no right of personality in the French Civil Code. On the contrary, the French Civil Code actually protects the right of personality, but it protects it through another way without recognizing the right of personality. Article 1382 of the French Civil Code stipulates: “When any act of a person causes damage to another person, the person who causes the damage due to his fault shall compensate for the damage.” According to this provision, the nature of damaged rights and interests is not a necessary condition for the formation of tort liability, and damages including personality rights can be relieved by this provision. Thus, although the right of personality is not stipulated in the French Civil Code, it can be protected in essence. This kind of protection path is not “the right infringement protection path”, but “the subject protection path”. That is to say, in civil trial, the court protects not the personality right which exists independently, but the natural person who acts as the civil subject associated with it. From the civil trial practice in France, since the middle and late 19 th century, French judges have protected a series of personality rights, such as the right to respect for private life, the right to portrait and the right to reputation, in accordance with the provisions of Article 1382 of the French Civil Code. Promoted by judicial practice, from 1970s to 1990s, the French Civil Code was amended several times, and finally the personal rights such as respect for private life and protection of human body were written among them, making it a personal right protected by substantive law.
Compared with the standpoint of natural rights theorists, although legal rights theorists do not deny the nature of personality rights and natural rights, they believe that only legalization of personality rights can define the limits of rights, and the state can institutionally guarantee personality rights through compulsory force. The nature of personality rights should belong to legal rights rather than natural rights. 50 Affected by it, the German Civil Code of 1900 made enumerative provisions on personality rights. Article 823, paragraph 1, of the Act stipulates that “a person who intentionally or negligently infringes upon another person’s life, body, health, freedom, ownership or other rights shall be liable for damages caused by the infringement.” According to this provision, only when the perpetrator infringes on the victim’s specific personality rights, such as life, body, health and freedom, can he constitute civil liability for tort. The infringement of other personality rights not listed in the law does not necessarily constitute civil tort. In addition, the twelfth article of the German civil code also stipulates the right of the natural person’s name, which is different from the specific personality rights of life, body, health and freedom. It can not only seek relief through tort law, but also directly endow natural persons with the right to request. Compared with the French Civil Code, the German Civil Code not only directly stipulates specific personality rights, but also institutionally protects personality rights through the General Principles of Civil Law and Tort Law. Obviously, the way to protect the right of personality in Germany is not the “main body protection path” of France, but a very different “right infringement protection path”. In Germany, although judges can logically derive new specific personality rights from tort law as their counterparts in France do, their derivation must be based on respect for the specific personality rights established by law, and cannot arbitrarily expand the protection of personality rights not stipulated in law according to so-called natural rights.
2. The impact of the nature of civil rights or constitutional rights on civil legislation
At present, the debate on the right of personality is civil rights or constitutional rights, which is mainly aimed at the general personality right. There is basically no controversy about the nature of civil rights of specific personality rights. Such disputes are of great significance to the establishment of general personality rights in civil law. Most scholars in the field of civil law tend to think that personality right belongs to a legal right in nature and should be confirmed and defined in the civil code. However, “the constitutional limit of human rationality cannot make people construct an invariable or once-and-for-all table of individual rights to cope with various complex situations of the ever-evolving human society”. 51 The scope of personality right that can be stipulated in the civil code is limited. With the development of the times, this established personality right will inevitably show its narrow scope, which needs the help of general personality right to make up for its limitations in scope. Civil rights theorists tend to believe that the general personality rights belong to civil rights in nature, and it is necessary to specify them in civil law. In contrast, the constitutional rights theorists tend to believe that the nature of the general personality right is constitutional right. There is no need to directly stipulate the general personality right in civil law. Moreover, because of the high uncertainty of the general personality right, even if the general personality right is stipulated in civil law, it is difficult to operate in practice. Influenced by the above two standpoints, the general right of personality is presented in two different ways in Switzerland, Germany and the countries affected by it. In 1907 the Swiss Civil Code first stipulated the protection of personality in chapter 1, section 1, and then in article 28, it stipulated the general personality right and established the legislative model of “specific personality right + general provisions for the protection of personality right”. Compared with the Swiss Civil Code, although the German Civil Code was formulated earlier, it is difficult to distinguish the general personality right from the legislative level, 52 and the German Civil Code does not provide for the general personality right. Moreover, due to the highly uncertain connotation and extension of the general personality right, until the end of World War II, the German Imperial Court refused to recognize the general personality right in its judicial decisions. 53 In 1954, the German Federal Supreme Court established the concept of general personality right 54 in the Reader’s Letter case, in accordance with the provisions of Article 1 and 2 of the German Basic Law and through the “other rights” stipulated in Article 823, paragraph 1, of the German Civil Code, thus forming a very different way from Switzerland’s general personality right, namely “specific personality right + general personality right”. Since then, the German Federal Ministry of Justice has sought to amend Article 823 of the German Civil Code to include general personality rights, but ultimately failed to pass. 55
IV. The Jurisprudential Analysis of the Way to Realize the Right of Constitutional Personality in China’s Civil Law
After the founding of new China, the earliest stipulation of personal rights in China was the current Constitution. 56 The provisions on the right of personality in the general principles of the civil law were established under the influence and promotion of the current Constitution. Because our country is quite different from the western countries’ legal cultural tradition, coupled with the development path of “government promoted” 57 constitutionalism with obvious transplantation and reference content, it not only makes the constitutional personality right have obvious extraterritorial transplantation color, but also makes the civil law personality right bear the public law responsibility of practicing the constitutional personality right in the way of private law at the beginning of its generation. Of course, the legislation of realizing the constitutional personality right depends not only on the civil law as private law, but also on the public law including criminal law, administrative law and procedural law. The scenario presupposes that under the guidance of the spirit of constitutional personality right, private law and public law implement the safeguard requirements of constitutional personality right in their respective independent ways. As far as civil law is concerned, it should not only form a logical and self-consistent personality right system within its own system, but also maintain seamless connection with public law and smooth line of movement with the Constitution. This is obviously different from the relationship and interaction between the former citizen’s personality right and the latter constitutional personality right in Western countries. However, the crux of the problem is: how does the constitutional personality right of our country realize its effect on the personality right of civil law? The author believes that there are three ways to realize constitutional personality right in civil law.
A. Forming the content of personality rights conforming to the operation mechanism of civil law through civil legislation
The fourth chapter of the fifth chapter of the general principles of Civil Law stipulates the personal right. Its actual content is the right of personality. It includes: the right to life and health, the right of name, the right of portrait, the right of reputation and the right of honor. From the structural design of “civil rights” in the General principles of Civil Law, the status of the aforementioned personality rights and civil rights such as real rights, creditor’s rights and intellectual property rights is the same, but the aforementioned personality rights have not been given the claim rights of the latter. That is to say, the protection of the aforementioned personality rights can only be carried out through tort law, and the subject of personality rights cannot directly put forward a positive claim to the obligatory subject based on the specific personality rights owned by the individual. Therefore, the so-called equal status of the aforementioned specific personality rights compared with civil rights such as real rights, creditor’s rights and intellectual property rights is only godlike, and they are not really given equal status. The author believes that specific personality rights should be endowed with independent right of claim, which is necessary to ensure that civil legislators fulfill their constitutional obligation to protect personality rights. Jurisprudentially, the constitutional personality right is not only a negative right of defense, but also a positive right of claim. As a right of defense, citizens have the right to ask the state to assume the right of passive non-infringement; as a right of positive claim, citizens have the right to request the state to take effective measures to protect their constitutional personality rights. Some Japanese scholars call the responsibility of the state in comparison with the basic rights as three kinds of obligations undertaken by the state, “i.e. the duty of intermediary prohibition, the duty of protecting basic rights and the duty of supporting basic rights”. 58 As far as the constitutional personality right is concerned, the duty of protecting the personality right of the state means that the State takes effective measures such as legislation and judicature to protect citizens’ constitutional personality right from being infringed by others. Civil lawmakers can, of course, impose judicial protection on citizens’ personal rights through tort law. However, this kind of protection aims at the situation that citizens’ personal rights have been infringed, and the tort law is obviously powerless for the situation that citizens’ personal rights have not yet been seriously damaged and are in danger of being damaged. Otherwise, if only through tort law to protect specific personality rights, citizens cannot avoid damage or resolve conflicts among themselves by making direct requests to infringers. This is not conducive to the realization of private law autonomy, but will eventually lead to the structural transfer of disputes about infringement of personality rights to the courts, which will increase the burden of the courts. Therefore, our country should follow the example of other countries and regions, 59 and endow specific personality rights with independent claim rights in civil law. At present, there is a great controversy in domestic academic circles about the status of personality right system in the civil code. There are two standpoints, one is in favor of independent editorial theory 60 and the other is against independent editorial theory. 61 The author believes that although the differences of civil law scholars’ standpoints on this issue highlight their different perceptions of the status of personality rights in the civil code, their common standpoints are also obvious: they both believe that tort law should not be used solely to protect personality rights. Unfortunately, while emphasizing the importance of personality rights, civil law scholars seem not to pay much attention to the value of the right to claim personality rights compared with the protection of civil law personality rights, 62 and pay little attention to the public law responsibility of protecting constitutional personality rights. The General principles of Civil Law adopted in 2017 summarized the experience of judicial practice in the past and expanded the scope of specific personality rights from the legislative level. However, there is still no independent right of claim for specific personality rights. The pattern that personality rights are protected solely by tort law has not changed substantially. There are still some shortcomings in the realization of constitutional personality rights in civil law.
B. To make a logical analogy of the personality rights of the existing civil law through constitutional interpretation
The history of the development of personality right system in western countries proves that personality right is not a pure natural right, and the establishment of personality right should adopt the legal way. Because our country is quite different from the legal cultural tradition of western countries and the peculiar path of the formation of civil legal personality rights, it is particularly important to establish civil legal personality rights by legal means in our country. However, we must be aware that legislators are not omnipotent God, but an organization composed of human beings. The inherent limitations of human rationality determine that the system of personality rights constructed by legislators has a certain degree of closeness. With the development of the times and the progress of science and technology, the established system of personality rights will inevitably show its limitations in scope, thus providing space and possibility for judges to show their sense of existence in expanding the scope of personality rights. However, this does not mean that when expanding the scope of personality rights, judges can disregard the established personality rights in civil law, and arbitrarily assume some new personality rights. Otherwise, not only will people’s freedom of conduct be unduly suppressed, but also the smooth line between civil law and constitution and the seamless connection between civil law and public law will be affected. It must be noted that the right of personality of civil law is established under the influence and promotion of the constitutional right of personality. Civil law should not only fulfill the promise of protecting the right of personality made by the Constitution through private law, but also realize the proper connection with public law which shoulders the responsibility of realizing the right of personality of the Constitution under the guidance of the spirit of the Constitution. Therefore, when expanding the interpretation of the established personality rights in civil law, judges must adhere to the method of constitutional interpretation to expand the interpretation of the established personality rights in civil law in accordance with the standards of constitutional pro- visions, spirit and principles, so as to “ensure that the conclusions reached through interpretation are consistent with the normative meaning of the Constitution”. 63 Because judges only internalize their understanding of constitutional spirit in the interpretation of the established personality rights in civil law, and do not directly involve the interpretation of constitutional norms, this interpretation does not violate our constitutional interpretation system. Thus, the spirit of constitutional personality right can be stirred by the interpretation of the constitutionality of judges and logically injected into the expansion of the established personality right of civil law, thus ensuring the smooth movement between the two and the connection between civil law and public law.
In addition, we must also see that under the modern social conditions, with the development of science and technology, names, portraits, voices, images and even personal privacy can obtain the status of separation from people through certain ways, and thus enter the space of commercial exploitation. The necessity of the existence of the right to exploit commercial personality is highlighted. In order to avoid the possible conflicts between the exercise of the right to commercial use of personality and the norms of public law, it is necessary to neutralize them through the system of civil legal acts in civil law. Article 52 of China’s Contract Law stipulates that a contract
that violates the mandatory provisions of laws and administrative regulations is invalid. According to the provisions of the fourth provision and the interpretation of the Supreme people’s Court on Certain issues Concerning the Application of the Contract Law of the people’s Republic of China (1), when a civil subject exercises his or her commercial use right 64 and contracts with the other party, the contract is void if it violates the mandatory provisions in laws and administrative regulations. However, such contracts are not necessarily invalid if they violate the mandatory provisions of local regulations, administrative rules and administrative normative documents. The legal basis of the aforementioned provisions lies in the legal reservation system established in the Legislative Law, which objectively helps to avoid excessive penetration of public law norms in the field of private law and safeguard the basis for the existence of private law autonomy. However, from the perspective of judicial practice, it is very difficult to completely deny the impact of local regulations, administrative rules and administrative normative documents on the validity of such contracts, nor can it make a completely convincing theoretical explanation. 65 The more appropriate solution is to link the violation of local laws and regulations, administrative rules and administrative normative documents with the damage to social and public interests stipulated in Article 52, paragraph 4, of the Contract Law conditionally, and to interpret the constitutional personality right as the judge’s criterion for judging whether the contract harms social and public interests, and to interpret the constitutional personality through a constitutional interpretation method. The spirit of power logically annotates the judges’ interpretation of social public welfare, in order to achieve a more appropriate link between the right of commercial use of personality and the compulsory norms of public law.
C. Ensuring the effectiveness of the constitutional personality right in the field of civil law through the general personality right
By analogy interpretation of specific personality rights, we can expand the scope of protection of personality rights to a certain extent, but the established connotation of specific personality rights determines that judges cannot go too far. He must exercise discretion prudently under the connotation of specific personality rights, and expand the scope of personality rights appropriately without endangering the integrity of the personality human rights system and logical self-consistency. Then, the legitimacy of such expansion ceases to exist. In order to make up for the above limitations in the application of analogy, the general personality right should be established. Compared with the specific personality rights, the general personality rights can enable judges to “weigh and remedy” the legal interests of personality that have the necessity of remedy and are not typed into specific personality rights in response to the changes of social reality. 66 At present, western countries represented by Switzerland and Germany have established general personality rights in some way. Article 101 of the General principles of Civil Law of China first stipulated personal dignity. 67 Some scholars in the field of civil law in China believe that the provision on personal dignity in this article is actually the content of general personality rights. Some scholars have different opinions on this issue. 68 The author holds the latter position for the reason that the provisions on personal dignity in this article are related to the right of reputation and do not give the general right of personality an independent right status. Judging from our judicial practice, until 2001, the courts had been protecting the general personality rights by analogy. Article 1 of the Interpretation of the Supreme people’s Court on Several Questions Concerning the Determination of Compensation Liability for Mental Damage in Civil Tort, published in 2001, stipulates the general personality right. However, since the article bears the general personality right, the “right of personal dignity”, “right of personal freedom” parallel to the specific personality right in paragraph 1 and the “other personality interests” independently appearing in paragraph 2, as well as the first and second paragraphs. The elements of infringement of general personality rights stipulated in the clause are different, so the inherent logical relationship is somewhat mixed.
Articles 112 to 115 of the General principles of Civil Law promulgated in 2017 stipulate the right of personality, of which Article 112 stipulates the right of general personality. From the general structure of the provisions on personality rights in the General principles of Civil Law, China adopts the model of “general personality rights + specific personality rights”, which is very close to the protection model of personality rights established in the first paragraph of Article 823 of the German Civil Code in appearance. However, the difference between the two is that Article 823, paragraph 1, of the German Civil Code does not directly stipulate the general right of personality. The so-called “other rights” in this article bear the general right of personality. The general right of personality is excavated from the “other rights” by the German Federal Supreme Court directly invoking the provisions of the Constitution on human dignity. By contrast, the way in which Germany establishes the general right of personality seems more desirable. The reason is that the personality right is essentially a constitutional right. Although the specific personality right formed after the decomposition of the civil law field has realized the structural reversal of the nature of the right, the nature of the general personality right is still a constitutional right. Although it has the value of expanding the scope of specific personality rights in civil law, it also bears the public law mission of realizing the spirit of constitutional personality rights in civil law. Moreover, the accomplishment of this mission must be based on the premise of not undermining the autonomy of private law. Therefore, judges must inject the spirit of constitutional personality right into the civil law through the constitutional interpretation of “other rights” which bear the general personality right, and adjust the permeation of constitutional personality right in the field of civil law through dynamic flow control, in order to achieve a more appropriate balance between safeguarding private law autonomy and promoting the spirit of constitutional personality right. Compared with Germany, because the general principles of civil law directly stipulate the general personality rights carried by “personal freedom and personal dignity”, its original function of connecting the constitutional personality rights with the civil personality rights has been overshadowed to a large extent, the nature of constitutional rights has shrunk sharply, and the nature of civil rights has been highlighted. The result inevitably lies in the fact that the judges’ duties inevitably turn to the interpretation of “personal freedom and dignity” with high degree of uncertainty in the real aspect, and the public faces the normal risk of being frequently taken for blame. In addition, since the provisions of the General principles of Civil Law on the right to personality have not fundamentally changed the previous legislative mode which relied solely on tort law protection, and Article 1 of the interpretation of the Supreme people’s Court on Several issues Concerning the Determination of Compensation Liability for Mental Damage in Civil Tort does not necessarily lose its effectiveness because of the promulgation of the General Principles of Civil Law, therefore, the infringement of “personal freedom” and “personal respect” should be premised on the “illegal infringement” required by the interpretation of Article 1, paragraph 1. In this way, the problem of identifying and judging the “illegality” 69 of infringement of “general personality rights” in German judicial practice is put in front of our judges. In this regard, we are clearly not fully prepared for the theory.
(Translated by Lu Dongmin)
* LIU Zhigang ( 刘志刚 ), Professor and Doctoral Supervisor of Law School, Fudan University. This paper is the periodic research result of the major project “Human Rights View with Chinese Characteristics and Human Rights Theory Research” (Project No. 15JZD007), granted by the Chinese Ministry of Education in 2015.
1. Liang Huixing, General introduction to Civil Law (Beijing: Law Press, 2001), 126; Wang Liming, personality Rights Law (Beijing: Renmin University Press, 2016), 4-5; Yang Lixin, personality Rights Law (Beijing: Law Press, 2015), 31.
2. Hu Yuhong, “Evolution of Personality System in the History of Law”, Science of Law 4 (2008): 40.
3. Yao Hui, On the Law of personality Rights (Beijing: China Renmin University Press, 2011), 22.
4. Roscoe Pound, Jurisprudence (Beijing: Law Press, 2007), 203.
5. Zhou Ting, The Origin of Roman Law (Beijing: The Commercial Press, 1994), 108-112.
6. Rolf Knipper, Law and History: On the Formation and Change of German Civil Code (Beijing: Law Press, 2003), 59.
7. Yin Tian, “On the Right of Personality of Legal Person”, Chinese Journal of Law 4 (2004): 51.
8. Hu Yuhong, “Evolution of Personality System in the History of Law”, Science of Law 4 (2008): 4.
9. Yingyi Xingye, “Persons in Private Law: Focusing on Property Law in Civil Law”, Series on Civil and Commercial Law (Beijing: Law Press, 1997), 159.
10. Yin Tian, “On the Right of Personality of Legal Person”, Chinese Journal of Law 4 (2004): 51.
11. K. Zweigt and H. Ketz, General introduction to Comparative Law (Guizhou: Guizhou People’s Publishing House, 1992), 153.
12. Gao Yi, French Style: political Culture of the Great Revolution (Zhejiang: Zhejiang People’s Publishing House, 1991), 11.
13. George Holland Sabain, History of political Theories (Beijing: The Commercial Press, 1986), 649; Kant, Criticism of pure Reason (Beijing: People’s Publishing House 2004), 569-570.
14. Hans Hattenbouer, “Persons in Civil Law”, Global Legal Review 4 (2001): 398.
15. Immanuel Kant, principles of Moral Metaphysics (Shanghai: Shanghai People’s Publishing House, 2005), 53.
16. He Lin, Lectures on Hegelian philosophy (Shanghai: Shanghai People’s Publishing House, 2011), 46.
17. Ma junju and Yu yanman, The theory of civil law (Beijing: Law Press, 2007), 110.
18. Liu Nan, “On Dual Structure of Public and Private Law and Market Economy in China”, in Series On Civil and Commercial Law (Beijing: Law Press, 1996), 65.
19. Qiu Ben, On the Rule of Law in the Market (Beijing: China procuratorial press, 2002), 106-107.
20. Helmut Goerlich, “Fundamental Constitutional Rights: Content, Meaning and General Doctrines”, in The Constitution of the Federal Republic of Germany (1988), 49-50.
21. Zhang Xiang, “Dual Nature of Fundamental Rights”, Chinese Journal of Law 3 (2005): 26.
22. Karl Larenz, General introduction to German Civil Law (Beijing: Law Press, 2013), 115.
23. Mei Zhongxie, Essentials of Civil Law (Beijing: China University of Political Science and Law Press, 1998), 53; Shi Qiyang, General principles of Civil Law (Taiwan: Taiwan Sanmin Bookstore, 2000), 65; Shimiyao, General principles of Japanese Civil Law (Taiwan:Taiwan Wunan Bookstore Publishing Company, 1995), 45.
24. Jiang Ping and Wei Zhenying, Civil Law (Beijing: Peking University Press, Higher Education Press, 2000), 80-81; Shi Shangkuan, General introduction to Civil Law (Beijing: China University of Political Science and Law Press, 2000), 152.
25. Liang Huixing, General introduction to Civil Law (Beijing: Law Press, 1996), 56.
26. Zhang Junhao, principles of Civil Law (Beijing: China University of Political Science and Law Press, 1991), 77.
27. Zhang Xiang, “Dual Nature of Fundamental Rights”, Chinese Journal of Law 3 (2005): 119-120.
28. Hu Changqing, General introduction to China’s Civil Law (Beijing: The Commercial Press, 1946), 58.
29. Dieter Medicus, General introduction to German Civil Law (Beijing: Law Press, 2000), 781.
30. Yingyi Xingye, “Persons in Private Law: Focusing on Property Law in Civil Law”, in Series on Civil and Commercial Law (Beijing: Law Press, 1997), 155.
31. Wang Liming, Research on General principles of Civil Law (Beijing: China Renmin University Press, 2003), 306.
32. Article 8 of the French Civil Code of 1804 stipulates that “all French people have civil rights”.
33. Luo Yuzhen, Theory on Civil Subjects (Beijing: China University of Political Science and Law Press, 1992), 32.
34. Yin Tian, “On the Right of Personality of Legal Person”, Chinese Journal of Law 4 (2004): 52.
35. Wang Boqi, General principles of Civil Law (Taiwan: Taiwan “National” Compilation and Translation Hall, 1994), 57.
36. Zeng Shixiong, The present and Future of the General principles of Civil Law (Beijing: China University of Political Science and Law Press, 2001), 78.
37. There are two opinions on whether a legal person has the right of personality: affirmative opinion and negative opinion. The former refers to Xue Jun, “An Analysis of the Basic Theories of Personality Rights of Legal Persons”, Legal Science 1 (2004): 50-55; the latter refers to Yin Tian, “On Personality Rights of Legal Persons”, Chinese Journal of Law 4 (2004): 51-57.
38. Some scholars believe that the enjoyment of personality rights by legal persons belongs to the arrangement of legislation technology. The personality rights of legal persons are the basic interests of legal persons which are essentially related to the existence of legal persons. These interests are guaranteed as the precondition for the legal person to play its social role normally, thus constituting the legal person’s personality rights. Xue Jun, “An Analysis of the Basic Theories of Personality Rights of Legal Persons”, Legal Science 1 (2004): 51- 57.
39. Wang Yong, Two Basic Questions of the Relationship between Constitution and private Law (Beijing: China University of Political Science and Law Press, 2002), 20, 22.
40. For example, according to the 823 rd , first and twelfth articles of the German Civil Code, the scope of personality right is limited to life, body, health, freedom and name. According to article 823, paragraph 2, of the Act, the right of reputation can be protected in a limited way.
41. For example, “other rights” as stipulated in Article 823, paragraph 1, of the German Civil Code.
42. The “Letter of Reader” case heard by the German Federal Supreme Court in 1954 is a typical example.
43. Ma Junju and Zhang Xiang, “The Theoretical Basis of Personality Right and Its Legislative Style”, Chinese Journal of Law 6 (2004), 46, 48.
44. Yao Hui, On the Law of personality Rights (Beijing: China Renmin University Press, 2011), 42.
45. Long Xianming, protection of personality Rights in private Law (Beijing: Zhonghua Book Company, 1948), 2.
46. Ma Junju and Zhang Xiang, “The Theoretical Basis of Personality Right and Its Legislative Style”, Chinese Journal of Law 6 (2004), 51.
47. Wang Liming, The personality Rights Act (Beijing: China Renmin University Press, 2016), 12-14.
48. Yin Tian, “On the Essence of Personality Rights — Comments on the Provisions of Personality Rights in the Draft Civil Law of China”, Chinese Journal of Law 4 (2003): 10-11.
49. Lin Laifan and Luo Zhengyan, “The Right to Personality in the Constitution”, The Jurist 5 (2008): 63.
50. Ma junju and Yu yanman, The Theory of Civil Law (Beijing: Law Press, 2007), 10.
50. Ma junju and Yu yanman, The Theory of Civil Law (Beijing: Law Press, 2007), 10.
51. Deng Zhenglai, “The Way to Construct the Rule of Law”, in Freedom and Order (Beijing: Chinese Social Science Press, 2002), 35.
52. Carl Larenz, General principles of German Civil Law (Beijing: Law Press, 2013), 171.
53. Holst Emann, “General Personality Right System in German Law-the Transition from Immoral Behavior to Tort Behavior” in Civil and Commercial Law in Series (Hong Kong: Hong Kong Golden Bridge Publishing, 2002), 416.
54. Maximilian Fox, Tort Law (Beijing: Law Press, 2006), 51.
55. Qiu Congzhi, Civil Law Research (Beijing: China Renmin University Press, 2002), 120.
56. The thirty-eighth provision of the current Constitution stipulates: “the citizens’ personal dignity is not violated. It is forbidden to insult, slander, make false accusation or defame citizens by any means.”
57. Zhou Yezhong, Constitution (Beijing: Higher Education Press, 2016), 165.
58. Yamamoto Keimi, “The role of private law in the trade relationship: Reconsideration of the law of incorporation”, Genius list 1087 (1996): 125.
59. For example, the eighteenth provision of the “Civil Code” in the area of Taiwan, China, stipulates the stop of the right to personality and the right to claim and exclude the right of nuisance.
60. Scholars who hold this position are Xu Guodong, Wang Liming, Xue Jun, Ma Junju, etc.
61. Scholars who hold this position are Liang Huixing, Yin Tian, Mi Jian, etc.
62. In recent years, civil law scholars have begun to pay attention to the right to claim personal rights. Representative documents such as: Yang Lixin and Yuan Xueshi, “On the Right to Claim Personality” , Chinese Journal of Law 6 (2003): 57-75.
63. Shi Yan’an, “The Constitutional Interpretation of Criminal Law Norms”, Journal of National prosecutors College 1 (2015): 70.
64. The article stipulated that “after the implementation of the Contract Law, the People’s Court confirms that the contract is invalid. It shall be based on the laws formulated by the National People’s Congress and its Standing Committee and the administrative regulations formulated by the State Council. It shall not be based on the local regulations or administrative rules”.
65. Su Yongqin, The Connection between Civil Legislation and public and private Law (Beijing: Peking University Press, 2005), 28-29.
66. Xiong Weilong, “Rights or Legal Interests? — Re-discussion on the Essence of General Personality Rights”, Journal of Comparative Law 2 (2005): 57.
67. Yang Lixin, personality Rights Law (Beijing:Law Publishing House, 2015), 120.
68. Wang Zejian, Theory of Civil Law and Case Studies (Beijing: China University of Political Science and Law Press, 1998), 293.
69. Xue Jun, “Uncovering the veil of ‘general personality right’ and discussing ‘system consciousness’”, Journal of Comparative Law 5 (2008): 27-30.
