论一般人格理论的摒弃及替代

The Abrogating of General Personality Theory and Its Substitution

一般人格理论引入民法学,是在法律对人格权保护严重不周的情况下,出于填补法律漏洞之需的无奈之举,带有临时性和应急性。一般人格理论具有无法克服的缺陷,我国不存在适用一般人格理论的法律环境。一般人格无论是"权"还是"益",人格权法均不应规定,法学理论也没有再保留一般人格概念的必要。在侵权责任法和人格权法进行专门立法背景下,真正在理论上具有意义的是从归类角度对人格利益展开典型性分析。

For the laws cannot thoroughly protect personality right at all, with its temporality and emergencies, the con- cept of general personality was introduced into the civil law, aiming at blocking up law loopholes, which is a reluctant ac- tion. The theory of general personality has its insurmountable shortcomings. There is not a suitable legislative environment for it in our country. Whether right or interest should not be prescribed in the Personality Law, thus it is not necessary to keep the conception of general personality in theories. Under the background of specially stipulation of Tort Liability Law and Personality Law, it will be really significant in theory to carry out typical analysis on personality interests from the per- spective of categories.