一般人格权的起源——以瑞士法和德国法为例

Study about the origination of the general personality system——Take the German law and Swiss law for example

一般人格权是一种以人格尊严、人格自由、人格独立和人格平等为客体的具有高度概括性的具体人格权之外的人格权。它和人格权保护下的具体人格权互补,共同构成对自然人格权的全面保护。一般人格权制度的产生有两个必要条件:一是人们已意识到人格权是一个不可被穷尽列举的权利;二是民法的立法格局具有一定的封闭性,不能满足人们日益增长的对自身尊严性存在予以尊重的要求。一般人格权并非起源于瑞士,而德国出于对新型人格权利的保护需要,司法机关在司法实践中通过对法律的解释创设了判例意义上的一般人格权。

The general personality is a highly summarized personality and its objects are the human dignity of personality, the freedom of personality, the independence of personality and the equality of personality. As one type of the personality, although the general personality has much difference between the concrete personality, it could be complementary with the concrete personality and they work together to protect the human personality comprehensively. There are two conditions must be meet when we setting the general personality in our law system. The first condition is that people have already realized the personality is an exhaustive list of rights; and the other is the Civil Code has a closed system which cannot meet the people＇s growing requirements of to be respected. The general personality was not originated in Switzerland. From my study, I found that because of the practical need of protecting the new type of personality fight in Germany, the courts creation the general personality in common law when they applied the law in their explain work.