Personal relationship is formed by people in social life, which has personal attributes and is inseparable from the main bodyeconomic interestIt is a social relationship with specific spiritual interests as its content.
Personal relationship refers to the social relationship that is inseparable from the person and has no direct property content.Personal relationship is the sum of a series of relationships based on personality and identity, that is, the mutual relationship between natural persons based on mutual personality and identity.
Soviet model
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Civil Law
First of all, it must be acknowledged that the research on personal relations in China's civil law academia is very weak, which is reflected in the fact that there is no review on personal relations in the two civil law research reviews. This may be because in the past few decades, China's civil law academia has exhausted all efforts to figure out what is property relations, and has no spare time to write a paper on this issue.However, all civil law textbooks talk about personal relations, and their views come from the Soviet Union. Therefore, it is appropriate to start from the Soviet doctrine.
1964Outline of Soviet Civil LegislationArticle 1 provides that:“sovietThe adjustment of civil legislation in the construction of communismCommodity currencyThe property relationship caused by the form, and the personal non property relationship related to the property relationship ".Obviously, the outline uses the term "personal non property relationship related to property relationship" to refer to the personal relationship we are talking about.
Only understandFormer Soviet UnionLegal right ofGerman doctrineWe can understand the implied term of "personal property relationship" only if we are familiar with itKant's philosophyWe will find that it comes from Kant's "real right vs. human rights" (German pers?nlichenSachrechten，Personal rights in property (the latter expression is easier to translate the concept of "personal property rights" that we cannot understand).According to Kant's interpretation,dinglichkeit The right to human rights is the right to occupy a person like an object, but not to use it as a crop. In fact, it is the right in family relations. Therefore, the exclusion of personal property relations in the Soviet civil law theory is the exclusion of family law from the civil law. This interpretation is similar to that in the civil legislation outline of 1964Commodity currency relationshipThe object orientation of civil law adjustment of the former Soviet Union and the relationship between marriage, family andGuardianship CodeThe legislative practice is consistent.
In the former Soviet Union, "personal non property relationship" can also be divided into two parts, one is personal non property relationship related to property relationship;The second is the personal non property relationship that has nothing to do with the property relationship.The former refers to the identity relationship in intellectual property rights and the relationship formed by legal persons on their trade names;The latter is about reputation, dignity, portraitFreedom of communicationAnd other personal interests.
Basic characteristics
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In our civil law, the personal relationship it regulates has the following characteristics:
Equal status of subjects
The subject status of personal relations regulated by the civil law is equal. There is no relationship between subjects to manage and be managed, to order and be ordered, to lead and be led. Neither party can dominate the other, but should treat each other equally and not interfere with each other.The civil law shall not regulate any personal relationship in which the subject status is unequal and one party can dominate the other party.
Related to the enjoyment and exercise of civil rights
Personal relations, some of which are related to the enjoyment and exercise of civil rights;Some are related to the enjoyment and exercise of political rights, but not to the enjoyment and exercise of civil rights.The civil law only adjusts the former, not the latter.For example, personal relations based on the body, health, name and reputation of natural persons are related to the enjoyment and exercise of civil rights by natural persons, and belong to personal relations regulated by civil law;However, personal relations based on the status of voters or the status of a member of a party or league, which have nothing to do with the enjoyment and exercise of civil rights, do not belong to the adjustment object of civil law.
Inseparable from the subject
Personal relationship
The so-called human body refers to the subject itself.Therefore, personal relationship is a social relationship based on the personality and identity that reflect their own attributes, and cannot be separated from the subject's personal.This kind of social relationship does not have economic content but has specific spiritual interests as its content.Of course, this does not mean that the personal relationship regulated by civil law has no content.Some personal relations have no direct connection with property relations, but are the conditions for the existence of the subject and the prerequisite for the subject to obtain property interests, such as the life and health relations of natural persons;Some personal relations are directly related to property relations, such as those based on the invention and discovery of natural persons.
The personal relationship between equal subjects is that between natural persons, legal persons and other organizations, includingrelationship of personalityAnd identity relationships.
Most Chinese civil law scholars' understanding of personal relations is different from that of the academic circles in major western countries,The extension of the latter understanding is far greater than that of the former.The omission of subject qualification in China's understanding of personal relations has led to the reduction of the importance of this relationship, which has led to its postposition in the relevant provisions of the legislation.
target
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relationship
Windshaid, one of the drafters of the German Civil Code and the main representative of the Pandektun School, believes that "all private laws have two goals to do:
(1) Property relationship;
(2) Family relations.
Therefore, the main division of private law is the division of property law and family law.The property law has the following objects: 1. the legal relationship between objects;2. Legal relationship between people:Creditor's rights lawOr debt relationship law.However, although the property law should solve the problem of the purpose of the property of the deceased, the relevant principles on this issue constitute the inheritance law as a whole ".SavignyThe theory of the object of legal regulation ofWindshaidThe theory of the object of adjustment of private law is very similar, the only difference is that the latter does not mention the adjustment of "people themselves".The reason for the difference is not difficult to find: Savigny talks about the object of legal adjustment, not limited to private law;Wendshaid talked about the adjustment object of private law.The logical comparative conclusion is that Windshaid understands the adjustment of "people themselves" as a public law issue, because this is the nationalnatural personandlegal personTherefore, this issue is excluded from the regulation object of private law.
in fact
How to understand "body" is also related to the identity of "label" and "goods".According to Mr. Liang's statement quoted above, we know that "body" only refers to family relations.According to the Soviet discourse system that China has followed for a long time, this understanding of "body" is narrow, because it does not include the "identity relationship" in intellectual property rights, and the Chinese Civil Code being drafted has planned to includeIntellectual Property。What's more, Mr. Liang has made an in-depth study of the characteristics of modern civil law, one of which is the rise of new identities such as "consumers" (that is, the movement from contract to identity). Will China's future civil code adjust such "identity relations"?We must see that the Italian Civil Code even covers alleuropean unionThe country's civil code has already adjusted such identity relations.It seems that whether China's future civil code will adjust such identity relations will determine its degree of modernity.
China transformation
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General Principles of Civil Law
Personal relationship
In the 1950s, China completely followed the Soviet Union's theory on the object of civil law adjustment.The first Chinese civil law textbook published in 1958 defines this problem as follows: "In addition to mainly adjusting property relations, civil law also adjusts certain personal and non property relations".Whether personal non property relations are regulated by civil law depends on whether they are "closely related" to property relations.Which personal non property relationships meet this condition?The answer is "due to invention and works".It seems that China's theory of the object of civil law adjustment is basically the same as that of the former Soviet Union. The difference is that no one claims that the specific relationship of personality rights should be adjusted by civil law.As time went by, the attempts of the former Soviet Union scholars to include personal and non property relations unrelated to property relations in the object of civil law adjustment affected Chinese scholars,Tong RouProfessor's first unified textbook of civil law after the reform and opening upPrinciples of Civil LawPersonal relations are defined as "social relations without property but with personal attributes".This definition is slightly different from that of the former Soviet Union. The Chinese author seems unable to understand the Soviet style expression of "personal non property relationship", so he has transformed the Soviet definition. Thus, the new "personal relationship without property content" cannot compete with "personal property relationship".The author describes the content of this personal relationship aslife, health, name, honor and other rights, andCopyright、Right of discovery、Right of inventionAnd other rights directly related to the name and honor of the person.At the same time, he said: although personal relationship has no property content, it can become the premise of property relationship, for example, the owner of intellectual property can get remuneration.
In fact, the definition of new personal relationship in China has been more advanced than that in the Soviet Union: the specific personal right relationship, which was ranked second in the Soviet Union and reluctantly pushed into by scholars, has become the first content of personal relationship in China, and the identity relationship of intellectual property owners, which used to be the first, has been pushed into the second place.This arrangement is more reasonable than that of the former Soviet Union, whether based on the idea of protecting human rights or the frequency of the two relationships.The "being in the right house" of the specific personal right relationship in the personal relationship also destroys the unity of the personal relationship and property relationship in the past under the attribute "caused by the form of commodity currency", creating conditions for getting rid of the civil law view of commodity economy.
Chinese scholars continue to add new factors to personal relations.Northwest University of Political Science and LawThe civil law textbook published in 1982 explained the identity relationship as blood relationship, marriagerelativesRelationship and identity relationship in intellectual property rights, which is the first time to interpret kinship as identity relationship. This is the restoration of the traditional civil law meaning of identity relationship, which deviates from the Soviet legislative model of separating civil law and family law, and strengthens the trend of deviating from the civil law view of commodity economy.
withGeneral Principles of Civil LawBased on,Chinese jurisprudenceThey constantly add new factors to the existing definition of civil law adjustment objects,Jiang PingThe professor defined the personal relationship as "a social relationship that is inseparable from the property relationship and does not have direct material interests", adding the attribute of "inseparable from the person" to this relationship.
Progress continues.Published in 1987Jilin UniversityThe civil law textbooks in the Soviet Union began to decompose personal relations into personality relations and identity relations, which is a distinction not made by the civil law theory of the Soviet Union.The former is the social relationship related to people's qualification as civil subjects;The latter mainly refers to the identity relationship in intellectual property, but also includes the guardianship relationship.The proposition that personality equals civil subject qualification is right, but the author sums up the content of this proposition asright to life、Name right, portrait, reputation, marriage autonomy and other specific personality rights are wrong, because according to the reasons to be mentioned below, personality and personality rights are not the same.
Integration of Western Theories
After the reform and opening up, especially after the promulgation of the General Principles of Civil Law, China turned to the western countries as the main source of input of the civil law theory, which led to considerable changes in the theory of personal relations in China.
The first is the "unearthing" of the concept of personality.Under the condition that personal relationship is decomposed into personality relationship and identity relationship by Chinese authors, the question of how to understand the meaning of "personality" arises.As we know, in the theoretical history of the Soviet Union and China introduced above, "personality" is understood as specific personality rights (name, reputation, portrait, etc.).However, the rise of company law in China makes it necessary to use the term "personality" in another sense, because it is difficult to avoid using the term in the description of the relationship between shareholders and companies. In this context, "personality" means subject qualification.I remember that Professor Jiang Ping first talked about this when he was teaching us, but unfortunately he could not find a written basis.What's more regrettable is that although Professor Jiang Ping is one of the first authors to correctly use the word personality, he still interprets the personality relationship as "a social relationship between people based on each other's personality and with the subject's personality interests as the content" in the very recent textbook "Civil Law" edited by him.On the one hand, the textbook recognizes that personality is the meaning of subject qualification, which is equivalent to right capacity;On the other hand, he also believes that the personality right contained in the personality relationship refers to the various natural and social factors that human beings, as the social subject of the existence of nature, contain themselves and are protected by law under modern social living conditions, that is, various specific personality rights.Therefore, the personality relationship is, in the final analysis, the specific personality right relationship.Obviously, the research results of the same author on specific issues have not been raised to the height of basic theory.
problem
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This resulted in personality and personality rightright of statusAnd property rights.I think personality is the basis of the last three.According to Kant's right system, personality belongs to "natural right", and personality right, identity right and property right belong to "acquired right". The two legal phenomena are at different levels: one is the premise;One is the result.In fact, the concept of right capacity we use today is derived from Kant's "natural right".However, the personality of the first level is also related to some rights of the second level. The law regulating personality, personality right and identity right is the rule about the existence of the subject, which is the premise for the subject to carry out other activities. Of course, it should be stipulated or announced before the property relations law.Therefore, it is suggested that article 3 of the draft general provisions should be changed to "this law regulatesnatural person、legal personandUnincorporated bodyPersonal relationship and property relationship between them ".The postposition of personal relationship is caused by the narrow interpretation of this relationship (excluding personality relationship) in the Soviet civil law theory. Once it is fully interpreted, it is inevitable that it will regain its position in Roman law and even in Savigny's theory of legal adjustment objects.
conclusion
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Civil Code of China
So far, research shows that personal relationship (expressed as "personal non property relationship") in the former Soviet Union is simply understood as the identity relationship in intellectual property rights and the relationship formed by legal persons with respect to their trade names, which can be linked with property relationship and serve as the basis for the latter,Subject qualificationProblems, specific personality rights and kinship were all excluded from the category of personal relations. After the savior interpretation of scholars, specific personality rights were reluctantly squeezed into this category.Personality relation is interpreted as concrete personality right relation;The identity relationship is divided into two parts: first, the identity relationship in the kinship law;The second is the identity relationship in the intellectual property law, which realizes the transcendence of the Chinese personal relationship theory over the corresponding theory of the Soviet Union.But there is a flaw in the beauty. First, the personality relationship in the sense of subject qualification has never been distinguished from the personality relationship in the sense of protecting specific personality rights, which is the fundamental reason why the order of personal relationship is ranked behind the property relationship in legislation and theory, because once the personality relationship is understood as a question of giving legal capacity to the subject,Whether according to the criteria of importance or logic, it must be established before the occurrence of property relations as the premise of property relations.
Relationship and personality right relationship
Human body can be divided into two elements: "human" and "body".The so-called "person" includes the relationship of personality and the relationship of personality rights. The former is about the provision to endow the subject with legal capacity (including the capacity of rights and behavior);The latter is about the provisions of legal interests that cannot be separated from those who have the capacity for rights.The so-called "body" includes four types of identity relations;First, traditional kinship;Second, the identity relationship in the intellectual property rights introduced into the civil code from the Soviet Union;Third, the non legal status relationship of relatives represented by consumer status;Fourth, the identity relationship of the person who lost the right, for example,Draft Green Civil CodeRefer to the provisions of China's existing civil legislation on the CEO of bankrupt enterprises losing the capacity to engage in enterprise activities within three years after the end of bankruptcy proceedings.Those engaged in unethical business activities have sufferedAdministration for Industry and CommerceAnd other state organs, and lose the capacity to engage in business activities within five years thereafter.The "identity" here is the reduced status of "personality" as the subject of understanding legal capacity.Explain in this wayChinese Civil CodeThe "personal relationship" in article 3 of the draft general provisions can be omitted.
