论人格权法独立成编的必要性——以既有规范为中心

On the Necessity of Establishing Personality Rights as Independent Section:Focus on Existing Norms

人格权法目前已具备独立成编的体量条件、结构条件和分则条件,完全足以独立成编。事实上,独立成编不仅契合我国立法传统和司法现状,也符合域外立法趋势。尽管人格权法是否应独立成编确实是政治决断问题,但政治决断要受先前决断和现实条件的制约;结合制约条件可知,人格权法目前已只能独立成编。从实质层面看,由于部分人格权的权利边界缺乏有效参照、可因主体而异、可能存在明显裂缝,所以需要精细的界定规则;由于部分人格权的行使限度较小、行使程序严格且行使目的特定,所以需要专门的行使规则;由于人格权法更关注侵害行为、损害预防和精神抚慰,所以需要独特的救济规则。也即,人格权法实际上是一套与合同法、侵权责任法存在显著差别的规则体系。《民法总则》彰显了以人为本理念、时代性理念和民族性理念,人格权法独立成编更契合上述理念。

The law of personality right now has the proper condition of volume, structure, specific provisions for independent compiled. It is mature for a separate chapter of personality rights in Chinese Civil Code. In fact, independent compilation not only conforms to China's legislative tradition and judicial condition, but also complies with the trend of extraterritorial legislation. Although the question of whether the personality right law should be compiled independently is indeed a political decision, the political decision must be subject to the previous decisions and the conditions of reality. Combined with the constraints, it can be seen that the personality right law can only be compiled independently. On the substantive level, since some personality rights lack effective reference, vary from subject to subject and have obvious limitations, accurate rules are required. Due to the limitation of the exercise of some personality rights, strict procedures and specific purposes of exercise, special rules of exercise are needed. Because the personality rights law pays more attention to infringement, damage prevention and spiritual comfort, it needs unique relief rules. It can be seen that the personality rights law is actually a set of rules with significant differences from contract law and tort law. The general principle of civil law embodies the people-oriented concept, the concept of new times and the concept of the nation. As a separated part in Chinese Civil Code, the personality rights are in line with the concepts.