《民法总则》中英雄烈士条款的解释论研究

Research on the Interpretation of the Article Related to a Hero or a Martyr in General Provisions of the Civil Code

《民法总则》第185条是死者人格利益保护制度的特别规则,其理论基础为近亲属保护兼采社会公共利益,英雄应解释为英勇献身的英雄和自然身故的英雄;烈士以评定为依据。该条的保护范围仅限于姓名、肖像、名誉和荣誉人格利益,包括精神利益和财产利益。侵害方式与死者人格利益保护的认定条件基本一致。社会公共利益是本条的构成要件之一,应借助利益衡量的方法厘定社会公共利益。违反本条的民事责任不适用惩罚性赔偿,不同的请求权人主张的民事责任具有一定差异性。为保证民法的体系自洽性,本条可在民法典分则中进行细化规定,并在统编民法典时予以删除。

Article 185 in General Provisions of the Civil Code being in a spare and supporting position concerning the protection of personality interests of the dead, the theoretical foundation of which is to protect their close relatives and maintain public interests. Heroes can be interpreted as those who made heroic dedication and the ones who died of natural causes, while martyrs are titled based on official assessment. The protective range of Article 185 is restricted to some personality interests such as the name, likeness, reputation, and honor of a hero or a martyr, including spiritual and property interests. The identified conditions of infringement ways are roughly consistent with those of the protection of personality interests of the dead. Public interest is one of the constitutive requirements of the article, and methods of interest balancing can be adopted to define public interests. Punitive compensation is not applicable to the civil liabilities of violating the article, and it is noticeable that different claimers may result in different ways of assuming civil liabilities. In order to maintain self - consistency of civil law, the article should be refined and specified in Special Provisions of Civil Code, and Article 185 should be removed in the compilation of civil code.