论赔礼道歉的法律化:传统基础与现代发展

On legalization of apology: traditional foundation and modern development

赔礼道歉是我国重要的民事责任方式之一,产生于儒家礼制传统文化,并被东亚甚至西方国家和地区广泛借鉴。由于现代宪法对人格尊严与表达自由的保障,赔礼道歉的责任方式遭受违宪的争议,但在我国合宪说的观点更为有力。赔礼道歉是救济受害者名誉的最适当、有效责任方式,既妥善地平衡了表达自由与人格权保护,又契合了人格权所具有的道德与法律双重属性,符合我国基本国情及救济需要,实践中应予坚持。

As one of the important methods of civil liability in China, apology is produced by the traditional culture of Confucian ritual, and widely absorbed by Eastern Asian Countries, even by western countries. Because of the guarantee of dignity and freedom of expression in modern constitution, the liability method of apology is disputed by violation of constitution, but the view of constitutionality is more powerful in China. Apology is the most appropriate and effective liability method to remedy the reputation of victims, which not only balances the freedom of expression and the protection of personality rights properly, but also fits the double nature of morality and law of personality right perfectly. Since apology is in accordance with the national basic condition and the relief needs in China, it should be adhered to in practice.