The Distinction between the Right of Name and Other Personality Rights in the Context of Civil Code——with Legislative Proposals for the Right of Personality in Civil Code in China
LI Yongjun,XIANG Binbin
Commercial and Economic Law School, China University of Political Science and Law
The right of name, as the earliest established one among the rights of personality, is essentially different from the rights of life, body, health, freedom or others.The right of name is a right, and other “personality rights” such as that of life, body, health, and freedom still belong to the interests of law in essence.Name is a thing outside the person, and can be regarded as the object of right. Only by means of the technical tool of “right” can we establish its association with the specific subject.Personality interests, such as life, are essential elements of human beings. As the object of right, it will cause confusion between the subject and the object. Moreover, it can realize the connection between the subject and the specific subject without the technical tool of “right” and obtain legal relief through the protection of “the human body”. The right of name contains the positive functions of self-determination, use, change, and proper appellation, which determine the independence out of the protection of the tort law. Personality interests, such as life, do not have positive powers, and they are just passively protected by the tort law, hence unnecessary to establish their rights. On the contrary, if we recognize the interests of life, body, health, freedom and other personality as rights, it will add harmful power of punishment to them, thus bringing the risk of degrading human dignity. The above reflection is also beneficial to the legislation of personality rights in our civil code.
李永军 项斌斌. 民法典编纂背景下姓名权与其他“人格权”的区分——兼及我国民法典人格权编的立法建议[J]. 浙江工商大学学报, 2019, 33(2): 27-34.
LI Yongjun XIANG Binbin. The Distinction between the Right of Name and Other Personality Rights in the Context of Civil Code——with Legislative Proposals for the Right of Personality in Civil Code in China. Journal of Zhejing Gongshang University, 2019, 33(2): 27-34.