民法人格权编的政治基础与学术立场、立法技术的统一

Integration of Political Foundation,Academic Standpoint,and Legislation Techniques in the Personality Right Law of the Civil Law

自1986年《民法通则》规定了人格权以来,中国当代民法对人格权的立法、司法和理论研究经历了30多年的发展,取得了辉煌的成就。30多年来,我国对人格权立法的争论分为三个阶段,目前在编纂民法典中对民法人格权编的争论处于第三阶段,争论的表现是人格权在民法典中能否独立成编,争论的焦点在于民法人格权编的政治基础与学术立场、立法技术的统一问题。在民法人格权编的制定中,必须坚持其政治基础,又要与学术立场和立法技术相统一,而不是三个独立甚至对立的问题。目前在此问题上存在的一些似是而非的观点,经不起理论和实践的检验。

Since the General Principles of Civil Law in 1986 stipulated the personality right, the contemporary Chinese Civil Law has experienced more than 30 years of development in the legislative, judicial, and theoretical studies of personality rights and has achieved brilliant achievements. Over the past 30 years, China＇ s dispute over the personality right has been divided into three stages. At present, the debate on the establishment of the personality right in the compilation of the Civil Code is in the third stage. The controversy is manifested in whether the per- sonality right can be independently compiled into the Civil Code. The focal point lies in the integration of political foundation, academic standpoint, and legislation techniques in the Personality Right Law of the Civil Code. In the formulation of the personality right of Civil Law, we must adhere to its political foundation, and must be unified with academic standpoints and legislative techniques, rather than three separate or even opposing issues. The seemingly plausible point of view that currently exists on this issue cannot stand the test of theory and practice.