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The Protection of the Right to Dignity in the Connection and Interaction between the Constitution and Civil Law
May 11,2018   By:CSHRS

The Protection of the Right to Dignity in the Connection and Interaction between the Constitution and Civil Law


LIU Zhigang*
 
In the report of 19th National Congress of the Communist Party of China, General Secretary Xi Jinping said that China seeks to “accelerate development of the crime prevention and control system, combat and punish in accordance with law all illegal and criminal activities such as pornography, gambling, drug abuse, gang violence, kidnapping, and fraud, and protect people’s personal rights, property rights, and  right to dignity.” With regard to the report’s assertion on “right to dignity”, this author will elaborate on various learning experiences and exchanges with academic colleagues.

Ⅰ.  Provisions on the Right to Dignity in China’s Constitution and Civil Law


The first three official Constitutions that were successively promulgated and implemented after the founding of the People’s Republic of China did not cover cit- izens’ right to dignity. The current Constitution stipulates the right to dignity. Article 37 of the Constitution stipulates that “the personal freedom of citizens of the Peo- ple’s Republic of China shall not be violated,” Article 38 stipulates that “the dignity of the citizens of the People’s Republic of China shall not be violated.” When the Constitution was amended in 2004, it was added that “the state respects and protects human rights.” Since personal rights are an important part of human rights, they are, of course, a basic right that should be respected and guaranteed by the country. Com- pared with the Constitution, there are earlier provisions on specific personal rights in civil law, but the provisions on the right to dignity have undergone a relatively long period of development. Articles 98 to 101 of the General Principles of the Civil Law of 1986 concretely list the rights of life, health, name, portrait and reputation. Among them, Article 1011 contains words such as the “personal dignity” of citizens. Literally, Article 101 of the General Principles of the Civil Law seems to stipulate the personal dignity of the citizens. However, since it is associated with the right to reputation of citizens, it should not be equated with the right to dignity.

Article 2 of the Tort Liability Act implemented in 2010 regulates protected civil rights. However, the article does not equate to Article 1 of the Interpretation of Sev- eral Issues Concerning the Determination of Compensation Liability for Spiritual Damages in Civil Torts, which clearly defines the “right of personal dignity,” “right of personal liberty” and “other personal rights and interests” such as civil rights and interests protected by the Tort Liability Act. Article 109 of the General Rules of the Civil Law adopted in 2017 establishes the “right of personal freedom” and “right of personal dignity” of natural persons, and places them before other specific personal rights. This is not the same as the aforementioned practice in judicial interpretation. It indicates that China has formally established general personality rights at the legisla- tive level, which will inevitably have a greater impact on judicial practices.
 

Ⅱ. The Nature of the Right to Dignity


The concept of the right to dignity has emerged in modern times. In the devel- opment of the concept of personal rights, the topic has long been controversial in academic circles. The controversy mainly focuses on two aspects. The first aspect is whether right to dignity is a natural right. The second aspect is whether the right to dignity is a civil right or constitutional right. This author believes that right to dignity is essentially a constitutional right, but with inherent innateness, and it is   impossible to establish or confirm the right to dignity through private negotiation between civil subjects; the subject of responsibility for such a constitutional right is the state public authority, which shoulders the constitutional responsibility to respect, protect and not infringe on the right to dignity. The status of the Constitution as the fundamental law determines that it is impossible to make provisions on the right to dignity that are too detailed, so the responsibility for forming the content, framing the scope and deter- mining the boundaries is mainly embodied in the law. The provisions concerning the right to dignity in civil law are an important manifestation of the state’s discharge of its constitutional responsibility. Of course, the right to dignity in civil law is often bro- ken down into various specific kinds of personal rights such as the right to life, health, body, name and reputation. These specific rights relate to all aspects of the civil life of a person. Any violation will lead to civil consequences. The position that should be upheld in defining the nature of the right to dignity in civil law is that the personal rights stipulated in the Constitution belong to constitutional rights, and the subject of the obligation to which it refers is the authority of the state; the specific rights to dig- nity stipulated in various laws are the unfolding of the constitutional right to dignity in civil law, their nature belongs to civil rights, and the subject of obligation is the civil subject. Compared with the specific right to dignity, the general personality rights have the function of extending the scope of specific personality rights to dignity and the nature of its constitutional right will not undergo any substantial changes due to the provisions of civil law.

Ⅲ. Protection of the Right to Dignity under the Connection and In- teraction of the Constitution and Civil Law


The right to dignity is stipulated in both the Constitution and civil law, which have different natures. But there is an inherent logical connection between them. The sole reliance on the Constitution, or on civil law is not sufficient in the protection of personality rights, which can be achieved only when the Constitution and civil law interact with one another. The connection and interaction between the Constitution and civil law in the protection of personality rights are embodied in the following two aspects.
 

A.  The content of the right to dignity in the Constitution to be embodied in civil law.


The nature of personality rights in the Constitution and personality rights in civil law are very different. The subject of the obligation that the former points to is the na- tional public authority, which bears the constitutional responsibility of passive non-in- fringement. However, this alone is not enough, and the national public authority must take practical and effective measures to promote the realization of constitutional per- sonality rights. To establish the specific content of the right to dignity (such as various specific personality rights) and the prevention and relief of violations from the subject of private law through civil legislation is an important form for the state’s public au- thority to realize its constitutional mission of safeguarding constitutional personality rights.

At present, the civil codes of the world with laws about personality rights mainly have three models: (1) French law model. Under this model, the civil code does not specifically stipulate personality rights, but protects the dignity of the person as the subject in the human law. The personality rights law has no independent legal status. (2) German law model. Under this model, personality rights are mainly defined in the tort law and regulated as the object of the tort. (3) Swiss law model. Under this model, a separate section is set up in the general principles of the civil code to stipulate person- ality rights as the most important area of civil rights. At the same time, in the tort law, specific protections are provided for various specific personality rights. The General Principles of the Civil Law of China in terms of personality rights is not the same as the previous models. The fifth chapter of the civil rights section stipulates the specific personality right, but does not provide general personality rights. In the Tort Liability Act, various specific personality rights are regulated as objects of infringement, and no general personality rights are specified. The rules of the General Rules of the Civil Law are different from the General Principles of the Civil Law, and the former stipu- late both various specific personality rights and general personality rights.

B. The protection of the right to dignity in civil law needs to reflect the spirit of constitutional personality rights.


Constitutional personality rights need to be implemented through the civil law. However, personality rights provided by the civil law to fulfill the constitutional commitment must not only ensure the consistency of its logic and the integrity of the system, but also comply with the overall spirit of the Constitution regarding the regu- lations on personality rights, have the ability to be properly integrated into the overall framework of the national legal system and achieve organic integration with the rele- vant provisions of public law and social law. Of course, the specific personality rights stipulated by the civil law must highlight the independence of the civil law, but must not ignore the relevant requirements and restrictive provisions of public law and social law, and emphasize their own independent value. Besides, public law and social law cannot suppress personality rights in civil law on the pretext of safeguarding social benefits and good customs. To realize the organic integration of personality rights in civil law and relevant provisions in public law and social law, we must depend on con- stitutional personality rights to integrate the legal system as a whole. Based on this, it is obviously necessary to review the constitutionality of personality rights in civil law according to constitutional personality rights.
 
Compared with the right to dignity, “the main function of general personality rights is to weigh and remedy the legal interests of personality that are not typed  into a specific personality right, to adapt to the development of the society, economy and culture and to fully realize the human-oriented value of modern law.”2 The actual benefit of this kind of personality right “lies in the fact that it makes it possible to protect personal interests that are not found in the various provisions, as well as new personal interests that may emerge with the development of society and technology.”3 Therefore, the establishment of a general personality rights system is of great value for strengthening civil law protection of personality rights. Prior to the promulgation and implementation of the General Rules of the Civil Law of China, neither the Gen- eral Principles of the Civil Law nor the Tort Liability Act stipulated general person- ality rights. The provisions concerning general personality rights were mainly passed through relevant judicial interpretations of the Supreme Court, such as “On the Inter- pretation of Several Issues Concerning the Determination of Compensation Liability for Spiritual Damages in Civil Torts”. Article 109 of the General Rules of the Civil Law initially establishes general personality rights in the form of civil legislation. This provision has positive significance for the protection of personality rights. However, the problem that must be paid attention to is that the connotation of general personal- ity rights is highly uncertain. If general personality rights are applied to the general- ization of the tort law, the civil subject can be blamed at every move, affecting the full play of their free will. Therefore, in the process of protecting the right to dignity, it’s necessary to moderate the connotations of general personality rights. After the cate- gory is objectively clarified, the right to dignity should be logically embedded within the overall framework of the national legal system, so as to avoid a judge’s wanton in- terpretation and infringement on self-value philosophy. In order to achieve the afore- mentioned goals, it is necessary to reasonably interpret and explain the connotation of general personality rights in civil law in accordance with the spirit of constitutional personality rights, so that the right to dignity is embodied in the concrete operation of civil law.

(Translated by LI Man)
Chinese Dictionary:

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