人身自由作为一般人格权价值基础的规范内涵

The Normative Meaning of Personal Freedom as the Basis of the Value of General Personality Right

《民法典》人格权编第九百九十条第二款与《民法总则》即《民法典》总则编第一百零九条一样,以人身自由作为一般人格权的价值基础,有别于之前其他制定法如《婚姻法》《劳动法》《消费者权益保护法》等在具体人格权意义上所使用的人身自由概念。对作为一般人格权价值基础的人身自由,应将其作为通往人格尊严这一目的的桥梁,在与同是一般人格权价值基础的人格尊严的规范关系中加以把握,从而将其理解为可以涵摄人之行为的所有表现形式的一般自由,在具体适用上构成其他自由形式如《民法典》第一千零三条的行动自由、第一千零四十二条第一款的婚姻自由的补充,从而为现实生活中新出现的以人格尊严的全面实现为目的的人格自由发展提供保护依据。

Paragraph 2 of Article 990 in the Civil Code of the People’s Republic of China is consistent with Article 109 of the General Provisions in the way that they both define personal freedom and human dignity as the value basis of general personality right,and the legality basis to bestow the protection of civil law to other person interest.There is no dispute in Chinese legal theories and practice about the role of human dignity as the value basis of the general personality rights.The role of personal freedom is in dispute.Prior to the Civil Code,personal freedom was stipulated as a specific right of personality in the Marriage Law,Labor Law,Consumer Protection Law and other statutes.It mainly referred to the physical freedom or freedom of movement of human beings.In the process of codification of the Civil Code,there was a dispute as to whether personal freedom should be stipulated as the value basis of the general personality rights.The objection held that personal freedom had always been stipulated and used as a specific right of personality in our current legal system,with a relatively certain meaning,thus if it was defined together with highly abstract human dignity as the value basis of general personality rights,it would not only lead to a conceptual confusion within the legal system,but also impede the normative functions of general personality rights.Therefore,the more general concept of"freedom"or"personality freedom"should be used as the value basis of general personality rights along with human dignity.However,instead of accepting such objections,legislators continued to use personal freedom as a value basis for the general personality rights.Under the background of the Civil Code in effect,the combined interpretation methods of system interpretation,purpose interpretation and historical interpretation leads to the conclusion that the personal freedom of Article 990,paragraph 2 of the Civil Code should no longer be understood as a specific personality right,but rather be regarded as the value basis of general personality rights and understood in the way that it is connected with human dignity as a whole.Therefore,the personal freedom of Article 990,paragraph 2 can be understood as human beings’autonomy and self-determination rights of his domain of close personality,which are based on mutual respect and recognition,free of others’interference.In this sense,the personal freedom of article 990,paragraph 2 of the Civil Code becomes a general freedom that can cover all manifestations of the act of a person and be complementary in one’s life.In terms of specific application,the Article 990,paragraph 2 of the Civil Code,constitutes a supplement to other rules on specific freedoms,such as freedom of movement under Articles 1003 and1011 of the Civil Code,and freedom of marriage under Article 1042,paragraph 1 of the Civil Code.In this way,it can not only fill in the loopholes of the legal rules that specify the types of freedom rights,but also serve as the justification and legality basis for the discovery and legal recognition of the specific personality interests.Accordingly,it will support the realization of the primary value of the personality rights in the Civil Code,namely human dignity.