论人格权的私力救济——兼论未来“人格权法”相关制度的确立与完善

On Private Remedy of Personality Rights——And the Establishment and Improvement of the Related System

人格权私力救济缘于人格权的自然权利属性,符合人格权固有性、防御性等与财产权相异的权利特征。人格权私力救济可以弥补精神损害赔偿制度普遍适用性与灵活性等的不足,克服公力救济在人格权保护与实现方面的滞后性与有限性。人格权私力救济的制度化有助于完成人格权法与刑法相关制度的对接,为民刑交叉案件中的法律适用提供必要的制度依托。在民法典总则部分设立民事权利私力救济制度的基础上,人格权法总则亦应将人格权私力救济制度设立于"人格权的保护"条款,并在其项下分设专门适用于人格权的正当防卫、紧急避险与自助行为,进而实现法律对人格权私力救济行为的有效引导与合理规范。

The private remedy of personality rights roots in the nature of personality rights, whose inherence and defensiveness are distinct from property fights. The self-help remedy could fill in the gap left by compensation system of spiritual loss, which is lack of general applicability and flexibility. Meanwhile, it would make up the lagging and limitation of public remedy in personality fight area. Furthermore, the institutionalization of self-help remedy in personality fights will integrate the counterpart of the Criminal Law, and will provide necessary backing institution for cases related to both civil law and criminal law. Provided private remedy is incorporated into the section of personali- ty fights of civil code, the general rules of personality fights would also include the clause of self-reliance relief. Moreover, it is achievable to set exclusive systems of justifiable defense, emergency and self-help action under the self-remedy department, which could effectively guide and reasonably regulate the self-help action.