不表意自由与人格权保护——以赔礼道歉民事责任为中心

The Right Not to Speak and the Protection of Personality Rights:Centering on the Civil Liability of Apology

言论自由与人格权保护的冲突,包括表意自由与人格权保护的冲突、不表意自由与人格权保护的冲突,二者皆属于基本权利冲突。不表意自由与人格权保护冲突应通过妥当解释消除影响、恢复名誉与赔礼道歉此两项民事责任来调适。赔礼道歉是一种在我国法律体系中广泛存在的法律责任,在比较法上获得普遍认可,作为民事责任对于打击金钱至上观念、维护市民法的伦理性具有不可或缺性。消除影响、恢复名誉与赔礼道歉作为民事责任皆符合宪法。消除影响、恢复名誉针对的是诽谤,是事实陈述问题,赔礼道歉针对的是侮辱,是意见表达问题;前者可以强制被执行人澄清事实而还原真相,后者无法强制被执行人真诚悔过并致歉,只能通过判决宣示正义。良法之治应唤醒人的良知,法律与道德应各司其职,共同保障和发展人格权。

The conflicts between the freedom of speech and the protection of personality rights include the conflict between the freedom of expression and the protection of personality rights and the conflict between the right not to speak and the protection of personality rights.Both belong to conflicts of basic rights.The conflict between the right not to speak and the protection of personality rights should be regulated by two civil liabilities:elimination of ill effects and rehabilitation of reputation through appropriate explanation,and apology.Aplology is a legal liability prevailing in the Chinese legal system,and is widely recognized in comparative law.As a civil liability,it plays an indispensable role in fighting against money worship and in maintaining the ethical nature of civil law.Eliminating ill effects and restoring reputation and apology,both as civil liabilities,comply with the Constitution.While the former is the statement of a fact targeted at libels,the latter is the expression of an opinion targeted at insults.In the former case,the judgment debtor can be enforced to clarify the fact and recover the truth,whereas in the latter,the judgment debtor cannot be enforced to repent and apologize,though justice is proclaimed through a verdict.The rule of good law should awaken the conscience of people.Law and morality should attend to their own affairts to ensure the development of personality rights.