身体权概念的再界定

To Redefine the Conception of Bodily Right

目前,民法学界对身体权概念界定不明确,使身体权与健康权等其他人格权相混淆,进而导致在具体应用上的分歧。身体权是独立于健康权的一项具体人格权。身体权所保护的"身体完整性"仅指身体的物理完整性,不包括所谓的"身体的形式性完整"。在法律上确认独立于健康权的身体权,并明晰"身体完整性"的含义,对于全面保护公民的人身安全、顺应现代科技和医学发展的需要以及在司法实践中解决非法搜身、性骚扰等侵权行为的归类具有重大意义。

In China, bodily right is a concrete personality right established by the judicial interpretation. At present, the civil law scholars＇ definitions concerning bodily right are not explicit, which confuses bodily right and the right to health and furthermore results in the divergences in judicial application. Bodily right is a concrete personality right which is independent of the right to health. Bodily integrity protected by bodily right only refers to the physical integrity of one＇s body, and excludes the formal integrity of one＇s body. If bodily right independent of the right to health is established by law and the implication of bodily integrity is distinct, it will make a great difference in protecting entirely people＇s personal security, complying with the need of modern science and technology and medical development, and solving the classification of such infringement acts as unlawful body search and sexual harassment in judicial practices.