财产权对人格权的积极索取与主动避让

The Positive Claim and Active Avoidance of Property Rights as to Personality Rights

财产权与人格权的关系历来是充满争议和左右徘徊的问题。传统理论认为人格权是内在于人且具有绝对的不可侵犯性,在与财产权冲突时优先。但并非所有人格要素都是内在于人,物质性人格权,尤其是身体权和生命权具有绝对优先性,财产权面临生命和身体冲突须主动作出自我牺牲性避让,甚至是以作为方式提供救助,而一些非物质性人格利益并不具有内在性和绝对不可侵性,财产权则可以对其实施积极索取,但在一定临界点,也必须立即停止积极索取行为,只是这种避让无须作出自我牺牲,无须作为。

The relation between property rights and personality rights has long been controversial and misleading. In traditional theory personality rights are deemed inherent rights of persons and absolutely inviolable, and priority shall be given to, if conflicts exist between them, personality rights over property rights. However, not all elements of personality are inherent rights of persons, personality rights of material nature, especially rights to human body and rights to life have an absolute priority, and even there are no rights conflicts between them. Property rights must avoid them actively when it is in the presence of rights to life and rights to human body. Nevertheless, other personality rights of non-material nature are not inherent or absolutely inviolable. Claims regarding property rights may be positively made on them. Whereas positive claims must be ceased when reaching a critical point and such avoidance needs no self-sacrifice.