【作者】 陈玲；

【导师】 贾登勋；

【作者基本信息】 兰州大学 ， 民商法学， 2007， 硕士

【摘要】 人格权虽然是19世纪末期以来逐渐发展起来的一类新型民事权利，但却受到各国立法、司法与理论界的关注。在21世纪的今天，尤其是在我国的社会主义市场经济体制改革不断深化、民主法制逐步健全的历史时期，加强对人格权的保护，建立独立、科学的人格权法律制度，较之以往任何时代都更具现实意义。本文第一部分以人格的发展为起点论述了人格的起源及法律人格的伦理基础，继而从社会学、哲学等不同学科对人格所下的不同定义引出当代法学对人格的使用和界定，认为对人格的理解和定义应从自然人本身出发，与主体资格、权利能力等概念区别开来，将人格定义为人之为人的各种主体性要素的总和。同时，进一步对人格进行论述，对人格与民事权利能力进行比较论证，从而得出人格并不等同于民事权利能力，无论是从它们的来源、平等性、可移转性都说明这一点。当代法学上的人格也不同于权利能力，当代法学上人格的含义比主体资格的含义范围更广，人格的内涵即人之为人的各种主体性要素的总和已经包含了权利能力所象征的主体资格的含义。第二部分详细论述了人格权。首先叙述了人格权概念的发展及学者对人格权概念的不同理解，得出人格权是指主体依法固有的、以人格利益为客体的、为维护主体的独立人格所必备的权利，并对这一概念进行了具体的分析。以人格权的概念为基础总结出人格权为专属权、绝对权、支配权、以法定的人格利益为客体及与财产有一定的联系这五个特点。接着从民法学界对人格权的性质的不同认识出发分析了法国民法典和德国民法典没有对人格权做出正面具体规定的原因并说明不能仅因此我们就认为人格权是宪法权利而不是民法权利。虽然宪法包含有对人格权保护方面的内容，但这并不能改变人格权是民事权利的属性。有了对人格权的概念、特点及属性的基本认识，进而对人格权与人格，人格权于人权的关系加以论证。人格权奠基于伦理人格基础之上，伦理人格是人格权的基础，有伦理人格，即有人格权，无伦理人格，即无人格权。通过对人权概念的把握更深刻地论证了人格权的性质，这也是对之前人格权性质的印证。第三部分联系当前所提倡的以人为本，依法治国，构建和谐社会的实际对人格权加以分析，进而提出人格权部分在我国民法典中应当独立成编。不论是建设社会主义法治国家还是构建社会主义和谐社会，人都是根本，它们的基础来源和根本归宿都是以人为本。人格权作为权利主体，为维护自己的人格利益所必需具备的人身权利则更要发挥其应有的重要作用，才能真正体现民法对人的终极关怀，而其作用的发挥又离不开对其地位的法律确认。最后分析了人格权制度独立成编的必要性，提出我国民法典中应将人格权部分独立设编。更多还原

【Abstract】 Although the right of personality is a new type civil right being developed gradually since the end of the 19th century, the international legislature, law and theory circle have paid close attention to it. These are today for 21 centuries, especially the period of history with deepening reform of socialist market economic system and strengthening socialist democracy and socialist legal system, it is more practical significance than ever to strengthen safeguarding the right of personality, and develop a unattached and scientific legal framework for the right of personality.The first part of the article discuss the headspring of the personality and the ethic basis of the legally personality beginning with the developing of the personality, and then explicate the definition and use of the personality in the contemporary law from the different subjects including sociology and philosophy. It is discussed that the understandability and the definition of the personality should focused on the natural person, and be distinguished from the concepts such as the subject qualification and the capacity. The personality was defined as the systemization of all the subject elements what one have absolutely necessarily. At the same time, more discussion about the personality was listed to compare and demonstrate the personality and the civil right capacity. It is recognized that the personality is not equivalent to the civil right capacity. The origin, the quality of equality and being changeable of the both all proved it. The personality in the contemporary law is also not equivalent to the right capacity. Its range of meaning is wider than the subject qualification. The connotation of the personality that the systemization of all the subject elements what one has absolutely necessarily includes the subject qualification symbolized by the right capacity.The second part of the article described the right of personality in detail. Firstly, the development of the personality right and the different understandability to the concept by scholars was described, the conclusion is that the personality right is the essential characteristic of the subject under the laws, the object is the personality benefits and it is the necessary right to safeguard the independent personality of the subject. Then the concept was analyzed concretely. It was summarized that the right of personality have 5 features including the exclusive right, the absolute right, the liberty to control, the personality benefits under law being as the object and that it have relations with the property. Then it was analyzed the reasons why the right of personality was not defined concretely in the civil law code of France and Germany based on the different understanding of the characteristic of the personality right in the field of the civil law. It was illuminated that we shouldn’t think that the right of personality is the constitution rights and not the civil rights. Although there are the contents to protect the personality right in the constitution, it is not doubtful that the right of personality belongs to the civil rights. The relations between the right of personality and the personality, the right of personality and the human rights were demonstrated based on the basic understanding of the concept, characteristics and attributes of the right of personality. The ethical personality is the foundation of the right of personality. No right of personality without the ethical personality. The characteristics of the right of personality were demonstrated more deeply according to the certainty to the concept of the human rights. It also offers the evidence in support of the characteristics of the right of personality.The third part of this article analyzed the right of personality associated with the current advocates such as the man-oriented, the rule of law and the harmonious society, then put forward that the right of personality should be a separate part of the civil code of our country. Whether to build a socialist country governed according to law, or to build a harmonious socialist society, people is the most important. The man-oriented is the foundation and the basic end-result. The right of personality should play an important role, as the integrant important personal right vindicated by subject of right So it is the embodiment of the ultimate care by civil law. However, the functioning of the personality right depends on the confirmation of its legal status. In the end, the necessity was discussed and the comment was given that the right of personality should be an independent part of the civil code of our country.更多还原