• Journal Name: China Law
• Author: Wang Liming
• Institution: Professor of Renmin University of China Law School
• Year: 2023
• Issue: 1
• Page: 87

Introduction

General personality rights (Das allgemeine Personlichkeitsrecht) are relative to specific personality rights. Specific personality rights, also known as individual personality rights (Einzelne Personlichkeitsrecht), refer to various personality rights that are specifically listed in laws and enjoyed by natural persons and other civil subjects, such as the right to life, the right to health, the right to name, the right to likeness and the right to reputation. General personality rights are personality rights with characteristics of right collectivity that are granted to natural persons by laws in a highly generalized way, and they are related to the value of human existence and dignity. In order to meet the needs of the development of personality rights, the provisions on general personality rights appear in Paragraph 2 of Article 990 of the Book “Personality Rights” of the Civil Code. The article stipulates that “in addition to the personality rights provided in the preceding paragraph, a natural person enjoys other personality rights and interests arising from personal liberty and human dignity”. The article maintains the openness of the protection of personality rights and sets miscellaneous provisions on the protection of personality rights and interests, more importantly, it defines general personality rights and provides an important value judgment standard for the determination of general personality rights. However, there are many problems in the application of the provisions in Paragraph 2 of Article 990 of the Civil Code. This article will present some humble opinions on this issue, which may be used for reference by the theorists or practitioners.

I.“Other Personality Rights and Interests” as General Personality Rights

(I) General personality rights are “other personality rights and interests” in addition to statutory rights and interests

General personality rights (Allgemeines Personlichkeitsrecht/AGB) originated in Germany. In German laws, general personality rights are “framework rights” with the nature of parent rights, which can generate various protected special personality rights, such as reputation, privacy and information autonomy. In China, general personality rights contain two different meanings:(1) It refers to the personal dignity and freedom enjoyed by a natural person, which is a “parent right” and can generate specific personality rights. In other words, general personality rights refer to other personality rights and interests enjoyed by a natural person and generated on the basis of personal freedom and dignity. They are different from the general personality rights in German laws, which are not limited to the personality rights and interests enjoyed by a natural person. In contrast, the subjects of general personality rights in Chinese laws are only natural persons.(2) It refers to “other personality rights and interests” other than statutory rights and interests. The “other personality rights and interests” in the sense of Paragraph 2 of Article 990 of the Civil Code actually refer to the personality interests that are not expressly specified in law but should be protected by law.

In China, the concept of general personality rights first appeared in the Interpretations on Problems regarding the Ascertainment of Compensation Liability for Emotional Damages in Civil Torts (hereinafter referred to as “the Interpretation”) issued by the Supreme People's Court on February 26, 2001. Article 1 of the Interpretation provides that “the people's court shall accept according to law cases brought forth claiming emotional damages for illegal infringement of any of the following rights of personality:(1)right of life, right of health, right of body;(2)right of personal name, right of portrait, right of reputation, right of honor;(3) right of personal dignity; right of personal freedom. The people's court shall accept according to law cases arising from the violation of societal public interests or societal morality by infringing upon a person's privacy or other interests of personality, and brought to the court by the victim as a civil tort for claiming emotional damages.” This judicial interpretation officially treats the right of personal freedom and the right of personal dignity as objects protected by the system of compensation for mental damages. The rights of personal freedom and personal dignity are theoretically called “general personality rights”, intensively reflecting the general value of personality rights. Article 109 of the General Rules of the Civil Law issued in 2017 stipulates that “the personal liberty and dignity of a natural person is protected by law”. This article provides for general personality rights but does not use the word “right”. It has been turned into Article 109 of the Civil Code.

The title of personality rights in the Civil Code in China has listed out and stipulated nine specific personality rights and interests of natural persons, i.e.the right to life, the right to corporeal integrity, the right to health, the right to name, the right to likeness, the right to reputation, the right to honor, the right to privacy and right and interest of personal information. These personality interests are called specific personality rights. However, the personality interests that have not been categorized as rights so far fall under the category of “other personality rights and interests” set out in Paragraph 2 of Article 990 of the Civil Code. After the promulgation of the Civil Code, such “other rights and interests” can no longer be classified as “rights” and do not fall under the category of statutory personality rights and interests. Accordingly, general personality rights may be understood as “other personality rights and interests” set out in Paragraph 2 of Article 990 of the Civil Code.

Such understanding is legitimate because: on the one hand, it should be noted that although general personality rights are recognized in Paragraph 2 of Article 990 of the Civil Code, actually the article does not provide for statutory personality rights but uses the expression “personality rights and interests”, indicating that the general personality rights set out in Paragraph 2 of Article 990 of the Civil Code intend to protect personality interests and thus they are different from the specific personality rights set out in Paragraph 1 of Article 990 of the Civil Code. In other words, Paragraph 1 of Article 990 of the Civil Code provides for statutory personality rights interests while Paragraph 2 of Article 990 of the Civil Code grants certain authority to judges to protect personality interests that have not been expressly specified in laws but can show personal freedom and dignity in specific cases. On the other hand, in the context that Paragraph 2 of Article 990 of the Civil Code has expressly provided that “a natural person enjoys other personality rights and interests arising from personal liberty and human dignity”, lawmakers have admitted that personal freedom and dignity can generate “other personality rights and interests”. In such a legal framework, a judge can determine which new personality rights and interests should be protected by law just according to the provisions in Paragraph 2 of Article 990 of the Civil Code. In this sense, the functions that the concept of “general personality rights” from the civil law in Germany intends to perform have already been realized by the “other personality rights and interests” set out in Paragraph 2 of Article 990 of the Civil Code in China. Therefore, it is proposed in this article that in the context of Chinese laws, “general personality rights” should refer to the “other personality rights and interests” set out in Paragraph 2 of Article 990 of the Civil Code. That is to say, “general personality rights” refers to “other personality rights and interests” other than the ten statutory personality rights and interests specified clearly in the Civil Code in China. In this sense, the general personality rights in the civil law in China are other personality rights and interests generated on the basis of personal freedom and dignity.

(II) General personality rights fall under the category of personality rights in a broad sense

In order to clarify this issue, the following two questions need to be discussed:(1) How should the legal concept of “Personality Rights” used as the title of Book IV of the Civil Code be understood? Does “personality rights” refer to specific personality rights or also include general personality rights?(2) How should the relationship between Paragraph 1 and Paragraph 2 of Article 990 of the Civil Code be understood? In my opinion, the different meanings of the two concepts of “personality rights” used in different articles of the Civil Code should be distinguished specifically as below:

(1) Personality rights in a broad sense. The so-called personality rights in a broad sense include various legal interests generated on the basis of personal dignity and freedom that are inseparable from personality. Personality rights in a broad sense include specific personality rights and general personality rights. The legal concepts that are at the same level of abstraction as personality rights in a broad sense are the “personal rights” stipulated in Article 112 and the “proprietary rights” stipulated in Article 113 of the Civil Code. For example, the title “Personality Rights” of Book IV of the Civil Code undoubtedly refers to personality rights in a broad sense. In addition, the “personality rights” mentioned in Articles 989, 991 and 992 of the Civil Code also fall under the category of personality rights in a broad sense. Some scholars have questioned whether general personality rights are applicable to the personality right injunction system on the ground that Article 997 of the Civil Code only provides for “personality rights” instead of “personality rights and interests”, seemingly indicating that only specific personality rights are applicable to personality right injunction. In my opinion, since the term “personality rights” used in the Civil Code refers to personality rights in a broad sense in most cases, the possibility that general personality rights are applicable to personality right injunction cannot be denied simply according to the literary meaning of Article 997 of the Civil Code.

(2) Personality rights in a narrow sense. The so-called personality rights in a narrow sense refer to the rights mentioned in Paragraph 1 of Article 990 of the Civil Code, which stipulates that “personality rights are the rights enjoyed by persons of the civil law, such as the right to life, the right to corporeal integrity, the right to health, the right to name, the right to trade name, the right to likeness, the right to reputation, the right to honor, the right to privacy, and the like”. The characteristics of the “personality rights” set out in Paragraph 1 of Article 990 of the Civil Code are that they are expressly provided for in the law and judges should refer to the express provisions in the law in individual cases to make a ruling. In contrast, Paragraph 2 of Article 990 of the Civil Code stipulates that “in addition to the personality rights provided in the preceding paragraph, a natural person enjoys other personality rights and interests arising from personal liberty and human dignity”, making it possible for judges to recognize and protect new personality rights and interests in individual cases. Therefore, the term “personality rights” mentioned in Paragraph 1 of Article 990 of the Civil Code should be understood in a narrow sense to refer only to statutory specific personality rights. The opposite of the concept of “personality rights” in a narrow sense is the rights and interests other than the personality rights and interests stipulated by law. The expression “in addition to the personality rights provided in the preceding paragraph” in Paragraph 2 of Article 990 of the Civil Code indicates that the personality rights understood in a narrow sense refer only to statutory rights and interests and do not include “other personality rights and interests” generated on the basis of personal freedom and dignity, i.e.general personality rights mentioned above in this article.

In the concept of personality rights in a broad sense, the “other personality rights and interests generated on the basis of personal freedom and dignity” stipulated in Paragraph 2 of Article 990 of the Civil Code may be understood as general personality rights, and those stipulated in Paragraph 1 of the same article may be understood as specific personality rights. Thus a dualistic system with both specific personality rights and general personality rights shapes up. The inclusion of general personality rights into the category of personality rights in a broad sense is also conducive to strengthening the protection of general personality rights. That is to say, special protection methods concerning personality rights, such as the right to claim for personality rights, the injunction against infringement of personality rights, and the compensation for mental damages for infringement of personality rights, may be applied to the protection of general personality rights.

II. Value Basis of General Personality Rights

The value basis of both specific personality rights and general personality rights is personal dignity. Based on this value, systemic personality rights come into being. However, in accordance with Paragraph 2 of Article 990 of the Civil Code, general personality rights have their unique value basis.

(I) Paragraph 2 of Article 990 of the Civil Code has a unique value judgment function

Since the “other personality rights and interests” stipulated in Paragraph 2 of Article 990 of the Civil Code, i.e.the general personality rights called here, are comprehensive and open-ended, they are bound to face a problem, i.e.the scope of personality interests to be protected is too large. Therefore, it is necessary to find a judgment standard to decide which interests may be included in general personality rights for protection by law, and then become applicable to the provisions of the Civil Code regarding the protection of personality rights, e.g.the special protection system for the right to claim for compensation for mental damages and the right to claim for personality rights. In reality, there are always a variety of spiritual interests. However, not all spiritual interests can become the general personality rights stipulated in Paragraph 2 of Article 990 of the Civil Code. In order to distinguish general personality rights from other spiritual interests, basic value judgment standards are needed so that spiritual interests worthy of being protected under Paragraph 2 of Article 990 of the Civil Code can be identified and recognized as general personality rights. Now that a general personality right is an interest in nature, there is a need to evaluate why such interest should be protected with the help of a certain value basis.

Paragraph 2 of Article 990 of the Civil Code lays emphasis on other personal interests generated “arising from” personal freedom and dignity. As a provision for confirmation of general personal rights, it may be directly invoked by judges and be directly applied as a basis for determining the scope of general personal rights. The article has a unique function forjudges to provide the basis for legal renewal. Such function is manifested in four aspects:(1) Value judgment: in the face of the spiritual interests claimed by a party concerned, a judge should evaluate the value of the spiritual interests to judge whether it conforms to the value of personal freedom and dignity set out in Paragraph 2 of Article 990.(2) Establishment of the legitimacy of interests: if it conforms to the value of personal freedom and dignity set out in Article 109 of the Civil Code, it also conforms to the basis of legitimacy under which such new personality interest is protected by law. Therefore, this article grants judges the right to legally protect “other personality rights and interests” in accordance with this value idea.(3) Scope limitation: personal freedom and dignity is used as a value judgment standard to determine which spiritual interests belong to the general personality rights stipulated in the article; if the restriction of the article is not available, it is likely to identify spiritual interests as general personality rights arbitrarily in judicial practice. As a result, general personality rights will be “generalized” and spiritual interests that should not be protected by law will give rise to compensation for mental damages.(4) Maximum protection: since personality rights and interests are constantly generated and developed, this article has the function of allowing judges to interpret other personality rights and interests in individual cases, playing the role of making a supplement, facilitating development and realizing maximum protection of personality rights and interests.

(II) Judgment value of “other personality rights and interests”: personal freedom and dignity

Paragraph 2 of Article 990 of the Civil Code stipulates that “in addition to the personality rights provided in the preceding paragraph, a natural person enjoys other personality rights and interests arising from personal liberty and human dignity”. How to understand the term “arising from” here? It means that the basis on which other personality rights and interests are generated is personal freedom and dignity. If a certain personality right or interest fails to reflect the value of personal freedom and dignity, it should not fall under the category of “other personality rights and interests”. Accordingly, to determine whether an interest that is not specified expressly in the law is a personality interest and whether it should be protected by law, we should, in accordance with Paragraph 2 of Article 990 of the Civil Code, make a judgment whether such personality interest reflects the value of personal freedom and dignity.

1. Personal freedom

The so-called personal freedom includes the freedom of physical action and the freedom of autonomous decision-making. It is a basic guarantee for a natural person to participate in various social relations and exercise other personal and proprietary rights, and it is also the basis and prerequisite for the exercise of all other rights. In the title of personality rights, since physical freedom has been stipulated in Article 1003 of the Civil Code as a specific personality right, it is not appropriate to include physical freedom in general personality rights, and it is also inappropriate to equate general personality rights with physical freedom. Therefore, personal freedom should be understood in a broader sense. It mainly refers to the freedom enjoyed by a natural person according to the law to engage in civil activities and other activities or the freedom to freely develop his/her personality. However, such freedom mainly refers to the freedom in the civil law, and it is not appropriate for such freedom to include the contents related to a citizen's basic political rights, e.g.freedom of speech, freedom of assembly, freedom of press.

The meaning of personal freedom should be expanded to include the meaning of free development of personality. The meaning of personal freedom is not limited to a person's freedom of movement but should also include the freedom of personality. Specifically, the reasons are as below:

Firstly, the meaning of “freedom of movement” in Article 1011 of the Civil Code is relatively simple. It mainly focuses on the physical movement of a natural person's body, but does not involve the freedom of mental activity and inner freedom. For this reason, some scholars refer to the “freedom of movement” in Article 1011 as personal freedom in a narrow sense. Based on this norm, the “freedom of movement” acquires the status as a specific personality right, and thus is directly applicable to relevant rules on right protection. The reason why the Civil Code only specifies the freedom of movement in the right of body is that freedom is universally enjoyed by civil subjects and the freedom of movement is closely related to the right of body and needs to be classified as a right for protection, while other types of freedom may be protected as interests.

Secondly, the scope of “personal liberty” in Paragraph 2 of Article 990 of the Civil Code is broader than that of the “freedom of movement”. If the meaning of “personal liberty” in this paragraph is considered the same as that of the “freedom of movement” in Article 1011 of the Civil Code, then Article 990 will become a mere formality. Therefore, the “personal liberty” in Paragraph 2 of Article 990 must be understood in a broader context, and it should not be limited solely to the physical movement of a human body. It is generally accepted that, in addition to the freedom of physical action, the freedom of autonomous decision-making may also be covered by the personal freedom mentioned in this article. Since the general personality rights stipulated in this paragraph play a role of protecting atypical legal interests of personality to the largest extent, the “personal liberty” in this article has a broader scope and also must be somewhat open so as to deal with new personality interests related to personal freedom that are caused due to the continuous development of practice. In this regard, the personal freedom in this article, together with personal dignity, plays a role of a carrier facilitating the endless development of personality rights and interests.

Thirdly, the “personal liberty” in Paragraph 2 of Article 990 of the Civil Code also has a value-leading function. The “personal liberty” in this paragraph follows the value concept of respecting the free development of civil subjects' personalities, constituting the value basis of general personality rights. Therefore, the personality interests related to the free development of civil subjects' personalities may be covered in this paragraph. For example, the issue of visitation right, which is controversial in practice, actually involves the personality development of minors. Based on the protection of the personality development of minors, though the Civil Code fails to treat the visitation right as a specific personality right, such right may still be treated as an interest related to “personal liberty” and be protected in the same way as general personality rights.

Fourthly, there is a sequence of application of law between the two norms. In terms of the application of law, the provisions on specific personality rights should take precedence over the provisions on general personality rights. Only when the provisions on specific personality rights are not sufficient to satisfy the general protection requirements for personal freedom and dignity, it is possible to apply the provisions on general personality rights under the condition that the provisions on specific personality rights are available. Therefore, when the rights of an obligee comply with the provisions of Article 1011 of the Civil Code, the provisions of Article 1011 of the Civil Code should be applied first because Article 1011 of the Civil Code is in nature a provision on specific personality rights, and it provides clearer protection for the freedom of movement and therefore it is unnecessary to resort to the protection of general personality rights in Paragraph 2 of Article 990 of the Civil Code. Though Paragraph 2 of Article 990 of the Civil Code protects personal freedom, it must be applied after the application of the provisions on specific personality rights because it has a nature of maximum protection.

2. Personal dignity

The so-called personal dignity refers to the recognition of and respect to a legal subject. In other words, a person should be respected as a human being. As a person lives in social life, he/she not only needs to sustain his/her life but to enjoy a life of dignity. Therefore, personal dignity is a basic precondition for a human being as a subject of social relations. It refers to the most basic social status that a citizen should have as a human being and should be respected by the society and others. It stands for a citizen's awareness of and respect for his/her and another person's personality value and social value based on various objective conditions, such as his/her social environment, status, prestige, work environment and family relations.

As an important content of general personality rights, the principle of personal dignity has the function of filling the gap that specific personality rights cannot protect personality interests comprehensively because of express enumeration. That is to say, the principle of personal dignity can make a supplement. Many scholars believe that the protection of the right of personal dignity means the protection of general personality rights. Because personal dignity is the basis of legislation on specific personality rights, a citizen's all personality rights reflect the requirements for personal dignity to different degrees, showing the respect for personal dignity in Chinese laws. In fact, many acts of infringement of personality rights, e.g.insulting and slandering others, disclosing the privacy of others, defacing the portrait of others and abusing others, are detrimental to the personal dignity of others.

In the title of personality rights in the Civil Code, on the one hand, personal dignity is dominant in value. Marxism advocates the emancipation of human beings and their all-round development. The ultimate goal is for the sake of human beings. The right of personality is the right enjoyed by a civil subject to prevent others from interfering with his/her personality interests. Since it concerns the personal dignity of every person, it is the most basic and important right of a civil subject. On the other hand, personal dignity plays a guiding role in terms of the application of law. The value pursuit of safeguarding human nature and personal dignity is the cornerstone guiding the establishment of the order of rights. In recent years, the number of cases of infringement of mourning interests accepted by courts kept increasing. Specific cases involve an adopted daughter's right to keep her name engraved on the tombstone of her deceased foster parents, the right to know the death of a relative, the right to bury a relative, the right to keep a name engraved on the tombstone and the right to keep a tombstone and grave intact. These new personality interests are also protected by the rules on general personality rights.

The protection of personal dignity is applicable not only to the protection of new personality interests, but also to the protection of personality objects, e.g.human embryos, human remains, and tombstones. The infringement of these special objects should not be just regarded as an infringement on general property. Attention should be paid to protecting the value of personal dignity reflected by these special types of objects. Moreover, “life dignity” is applicable not only to persons alive but also to human embryos. In other words, these special “objects” should be treated and handled in a way that is conducive to maintaining personal dignity. For example, in the case of human embryos, life dignity is an important integral part of personal dignity.

III. Relationship between General Personality Rights and Specific Personality Rights

As mentioned earlier, the Civil Code in China has listed out nine personality rights and one personality interest (personal information). Paragraph 1 of Article 990 of the Civil Code specifies the protection of specific personality rights, while Paragraph 2 of Article 990 provides for general personality rights. Thus, a question arises, i.e.what is the relationship between general personality rights and specific personality rights?

(I) Difference between specific personality rights and general personality rights

Firstly, the rank of rights and interests should be made clear. From relevant provisions of the Civil Code in China, the rank of rights is higher than that of interests. In case of a conflict between rights and interests, the rules on rights should take precedence over the rules on interests. Paragraph 3 of Article 1034 of the Civil Code stipulates that in the event of a co-opetition between the right of privacy and personal information, the right of privacy shall be protected first. The difference between rights and interests is reflected in the effectiveness of legal protection. It is generally believed that the degree of protection of rights is higher than that of interests; rights are clear and specific and the protection of rights has a higher rank than the protection of pure interests.

Secondly, a legally protected interest may also contain a directional obligation. However, unlike a right, the directional obligation of a legally protected interest may be unclear and a final judgment can be made usually after weighing of the interest. In the civil law, the distinction between a right and an interest depends on whether another person has a certain clear directional obligation. If the directional obligation is clear, it corresponds to a right. If the directional obligation is not clear, it corresponds to an interest. If an interest is protected by a judicial decision, then the judicial decision has actually determined that another person should respect the directional obligation of such interest In judicial practice in China, although each specific judicial decision fails to become a guiding case and it is difficult to legally bind other judicial decisions, the directional obligation established in these decisions may also have a substantial impact on the resolution of other subsequent disputes.

Finally, the boundary of interests is uncertain while the boundary of rights is clear. However, for general personality rights, the reason why they are not upgraded to rights is that the boundary of general personality rights is uncertain and open to some extent. Since new interests can be upgraded to rights only after they have a clear boundary through development in a period of time. This determines that the protection of interests through tort liability cannot be simply applicable to the constitutive elements of tort liability and a comprehensive consideration must be done with the help of the dynamical system theory to determine the necessity of interest protection and the scope of protection of general personality rights. When determining whether a general personality right should be protected, the judges must also explain and demonstrate the above issues in the judicial decision. In other words, there is a stronger demonstration obligation for the interests involved in the maximum protection specified in Paragraph 2 of Article 990 of the Civil Code. Demonstration should be done according to specific circumstances of cases. In contrast, the constitutive elements of right protection should be more lenient than those of interest protection.

(II) Clarifying the application of Paragraphs 1 and 2 of Article 990 of the Civil Code

The function of Paragraph 2 of Article 990 of the Civil Code is to enable judges to determine the legal basis and value base point of other personality rights (general personality rights), which have not been expressly specified in the positive law, in specific cases, while Paragraph 1 of Article 990 of the Civil Code is a definition and declaratory provision for statutory personality rights. Therefore, the relationship between Paragraph 2 and Paragraph 1 of Article 990 of the Civil Code shows the following features:

(1) Whether it is of legality. The distinction between general personality rights and specific personality rights lies in whether personality interests are legalized and fixed and whether there are clear provisions in legal norms. Accordingly, the precondition for the application of Paragraph 2 of Article 990 of the Civil Code is that there are no explicit provisions on specific personality interests in the law and it is not required to refer to other applicable provisions. For example, the Civil Code contains reference application provisions on the protection of voice interests and there are also reference application provisions on Internet nicknames and stage names. Thus Paragraph 2 of Article 990 of the Civil Code is inapplicable to voice interests, and the rights to Internet nicknames and stage names. When a law has provided explicit provisions on personality rights or new personality interests, the provisions of the law shall apply. For example, though personal information does not fall under the category of personality rights, the Civil Code and the Personal Information Protection Law have explicit provisions on the protection of personal information as a kind of personality interest worthy of protection. Thus these provisions, instead of Paragraph 2 of Article 990, shall apply.

(2) Whether the subject is limited. The general personality rights in Chinese laws differ from those in German laws, and the subject of such right can only be a natural person. On the one hand, China's Civil Code has clearly stipulated that legal persons and unincorporated organizations enjoy certain personality rights. For example, the subjects enjoying the right of name and the right of reputation also include legal persons and unincorporated organizations. However, the general personality rights stipulated in Paragraph 2 of Article 990 can only be enjoyed by natural persons, instead of legal persons or unincorporated organizations. According to Article 110 of the Civil Code, a legal person or an unincorporated organization enjoys the right to entity name, the right to reputation, and the right to honor. From the perspective of this provision, legal persons and unincorporated organizations enjoy three personality rights. The rights are listed out in a way of closed enumeration, indicating that the personality rights enjoyed by legal persons and unincorporated organizations are of closed type, obviously different from the open type of personality rights enjoyed by natural persons. Therefore, legal persons and unincorporated organizations do not enjoy general personality rights. On the other hand, the reason why the Civil Code grants general personality rights to natural persons only is that only natural persons enjoy the general personality interests arising from the value of personal freedom and personal dignity. This is also a concrete embodiment that the constitution protects the value of personal dignity.

(3) Whether the rules on specific personality rights can be applied by reference or by analogy. After the emergence of new personality interests, it is generally inappropriate to apply the rules on other specific personality rights by analogy unless there are special provisions in the law, and general personality rights should be adopted to protect them. From the perspective of the title of personality rights in the Civil Code in China, the title of personality rights provides for the specific circumstances under which the rules on other specific personality rights may be adopted. For example, Article 1001 stipulates that “The relevant provisions of Book I and Book V of this Code and the other laws shall apply to the protection of a natural person's relation-based rights such as a right arising from a marital and familial relationship; in the absence of such provisions, the relevant provisions of this Book on the protection of personality rights shall, based on the nature of the right.” On condition that provisions are already available in the law, the rules on specific personality interests may be adopted by reference to protecting specific personality interests. However, in the absence of special provisions in the law, it is not appropriate to apply the rules on specific personality rights by reference or analogy, but to apply the rules on general personality rights to protect specific new personality interests.

If the personality interests protected by general personality rights conflict with specific personality rights, specific personality rights should be protected first according to the legislative concept stipulated in Article 1034 of the Civil Code, i.e.the right of privacy takes precedence over personal information.

IV. Legal Remedies for General Personality Rights

(I) Dynamical system theory and protection of general personality rights

For the personality rights enumerated in the law, there are provisions on specific connotations and extensions of specific personality rights as well as specific obligations of conduct, while general personality rights do not have a clear orientation. Therefore, compared with specific personality rights, the protection of general personality rights should pay more attention to the weighing of interests and the dynamicl system. The dynamical system theory was first proposed by Austrian scholar Walter Wilburg in the 1940s. Its basic view is that legal norms adjusting the legal relations in a specific field contain many constituent factors, but the number of factors and the intensity of factors required by corresponding norms vary in specific legal relations; that is to say, the factors of norms adjusting each specific relationship constitute a dynamical system. Therefore, liability should be identified by considering dynamic factors in specific legal relationships. The reason why the liability for infringement of general personality rights is accurately determined through the dynamical system theory is that Paragraph 2 of Article 990 of the Civil Code is only a general provision, which is very principled and abstract, and needs to be concretized with the help of value supplementation, and actually various factors are considered in this process. New personality interests show the value of personal freedom and dignity. Judges should also judge whether the interests of the victim should be protected by evenly considering various interests and values that should be protected by law based on the circumstances of specific cases. According to Article 998 of the Civil Code, in determining the civil liability an actor is to bear for infringing upon other's personality rights, other than the right to life, the right to corporeal integrity, or the right to health, consideration shall be given to the occupations of the actor and the injured person, the scope of impact of the act, the degree of fault, as well as the factors such as the purposes, methods, and consequences of the act. The provisions of this article may be used for reference to determine the factors to be considered by the dynamical system theory.

(II) Application of the right to claim for personality rights

Article 995 of the Civil Code stipulates that “whose personality rights are infringed”, the victim shall have the right to ask the perpetrator to assume civil liability in accordance with this law and other laws. Therefore, some people insist that the right to claim for personality rights listed in Article 995 of the Civil Code is only applicable to specific personality rights, instead of general personality rights. In my opinion, such view point is worthy of discussion. On the one hand, the above arguments show that the title of personality rights in the Civil Code uses the concept of personality rights in a broad sense, including specific personality rights and general personality rights. The personality rights understood in this sense include general personality rights. Therefore, the methods for the protection of personality rights, including the right to claim for personality rights, should be applicable to the protection of general personality rights. On the other hand, now that the holder of a specific personality right may ask another person to stop infringement, remove obstacles and eliminate danger to realize the consummation of the right, general personality rights should also have a similar right to realize the right of claim otherwise it is not beneficial for the legal order to recognize general personality rights. In addition, Article 995 of the Civil Code, as an eliciting article, stipulates that when a personality right is infringed, the victim shall have the right to ask the perpetrator to assume civil liability in accordance with this law and other laws. The “civil liability” mentioned here includes not only the right to claim for personal rights but also the right to claim for compensation for damages. In other words, both specific personality rights and general personality rights can be protected by the right to claim for personality rights and the right to claim for compensation for damages.

(III) Application of the personality right injunction system

Article 997 of the Civil Code stipulates that “where a person of the civil law has evidence to prove that an actor is committing or is about to commit an illegal act that infringes upon his personality rights, and that failure to timely stop the act will cause irreparable harm to his lawful rights and interests, the person has the right, in accordance with law, to request the people's court to order the actor to stop the act”. In accordance with Article 997 of the Civil Code, the injunction system for infringement of “personality rights” is applicable to the illegal acts infringing personal rights that are being committed or are going to be committed. Here, the lawmaker uses the expression “personality rights” for the objects of protection. However, in Paragraph 2 of Article 990, the lawmaker refers to the general personality rights generated on the basis of personal freedom and personal dignity as “other personality interests”. Thus a question arises—is the injunction system applicable to the infringement of general personality rights? As mentioned above, the Civil Code adopts the concept of personality rights in a broad sense when using the legal concept of “personality rights”. Therefore, the provisions on personality right injunction are applicable to general personality rights.

(IV) Application of liability for compensation for mental damages

In case of infringement of general personality rights, the victim may obtain remedies either in accordance with the provisions on the right to claim for personality rights in the title of personality rights or in accordance with the rules in the title of tort liability. Article 1183 of the Civil Code stipulates that “where an infringement upon the personal rights and interests of a natural person causes serious mental distress thereto, the infringed person has the right to request compensation for pains and suffering”. In the case of infringement of general personality rights, although only a legal interest is infringed, the law also provides sufficient remedies for the victim so that the victim may request for remedies according to general rules in tort law. For example, if the victim suffers a property loss, the infringer should make compensation for such loss. If the victim requires the infringer to make an apology and eliminate the effect, the court may also support such a claim.

Conclusion

The provisions in Paragraph 2 of Article 990 of the Civil Code are brief but contain rich contents, and, based on value certainty, show important functions of protecting personality rights and interests in an open way to the largest extent. Since new personality rights and interests emerge constantly while the principle of legality cannot be adopted for personality rights in the same way as proprietary rights, it is inevitable for judges to engage in legal renewal. However, if judges are allowed to arbitrarily create new personality rights and interests, it seems that a pattern of thriving and expanded protection of rights has shaped up, while such pattern may have an impact on the existing right system and severely restrict a third party's freedom of action, resulting in excessive rights. Therefore, when recognizing and protecting general personality rights, judges must weigh the interests in strict accordance with the value basis of “personal freedom and personal dignity” stipulated in Paragraph 2 of Article 990 of the Civil Code, determine whether a certain personality interest can be included in the scope of protection of general personality rights, and present sufficient reasoning and demonstration in the judicial decisions.