民法典之名誉权立法论

Legislative Reflection on Repute Right in Civil Code

民法典人格权编草案之名誉权条文尚有完善之空间。建议增加胎儿和英雄烈士名誉保护的规定。对《最高人民法院关于审理名誉权案件若干问题的解答》中认定侵害名誉权责任的"行为违法性"表述不再继承,以与侵权责任编侵权责任构成要件的规定保持一致。建议在名誉权侵权责任认定中,强化个案自由裁量空间,适用《草案》第781条、第781条之1条之规定。《草案》第805条应当细分为正当行使权利和依法行使职权两种免责事由类型,相应增加"陈述事实""合理评论""未公开的口头或书面意见和建议""消费者评论""新闻自由""创作自由""维护公序良俗""依法行使职权"等免责事由。侵害名誉类案件司法裁判中应当区分适用基于人格权请求权和侵权损害赔偿请求权的责任形式。

There are still some room for the provisions on the right of reputation in the draft of the Civil Code to improve. It is proposed that the protection of the reputation of fetuses and heroic martyrs should be established. The expression of "illegality of acts" in the Supreme People’s Court’s Answer to Several Questions Concerning the Trial of Cases Concerning Right of Reputation should be no longer retained, so as to be consistent with the provisions of the constituent elements of tort liability in the tort liability part. It is proposed that the discretion of cases be increased and the provisions of Articles 781 and 781(1) of the Draft be applied. Article805 of the draft should be subdivided into two types of exemptions: the legitimate exercise of rights and the exercise of functions and powers in accordance with the law. Accordingly, the exemptions such as "statement of facts", "reasonable comments", "unpublished oral or written opinions and suggestions", "consumer comments", "freedom of the press", "freedom of creation", "maintenance of public order and good customs" and "exercise of functions and powers in accordance with the law" should be added. In the judicial practice, we should distinguish cases between the liability based on personality and tort damages.