China Civil Code: coming soon (3) - Personality law
China is now making its own civil code. As a country with a population of more than 1.3 billion, what kind of civil code will it have? This blog concerns the independence of personality law.
This blog is part of a series on the new Chinese Civil Code. Part (3) will discuss personality law. Previous blogs dealt with the legal history of Chinese private law and the introduction of a General Part in the future Civil Code. In subsequent blogs, other points of debate regarding the development of a new Civil Code will be discussed. The aim of the blogs, besides informing interested parties and scholars, is to get feedback on the relevant issues so please feel free to leave your comments.
Personality rights are very important in contemporary society where all kinds of risks are present. For example, life itself and physical health and integrity are exposed to risks caused by industrialization, and privacy is threatened by information technology. Personality protection has thus become a major topic in modern civil law. Against this background, a debate is being held on whether personality law should have a separate chapter in the future Civil Code.
Those against believe that there is no need to have an independent chapter on personality law. This is because:
- Unlike property rights, personality rights have a constitutional character and thus cannot be legally defined. Personality law itself constitutes an infringement on personality rights since it renders the protection regime closed and rigid.
- From the perspective of comparative law, personality rights can be well protected by tort law. Therefore, personality law does not require an independent chapter.
- Personality rights are constitutive of personality, so they should be included in the law of subject in the general part, rather than in an independent chapter.
- Articles regarding personality rights are very limited, so a separate chapter is not appropriate. Otherwise, there will be a lack of consistency between different chapters in terms of the length.
Those in favour hold that it is necessary to have a separate chapter on personality law in the future civil code.
- Personality rights should be legally enumerated, because as a kind of absolute right they should be clearly defined to prevent potential conflicts with other rights. In this respect, personality law serves to demarcate the sphere of freedom. The general personality right serves as a supplementary regime when specific personality rights do not suffice in protecting personality interests, which would diminish fear of insufficient protection.
- Tort law is important in protecting personality rights, but it is not enough. Like property rights, personality rights not only should be protected by a personal claim, but also a real claim. Like property rights, the real claim serves to protect the full condition of personality rights, so it does not require fault and damage as preconditions.
- At present, personality rights are partly commoditized, and are no longer only constitutive of ethic personality. In some situations, personality rights, such as the right to image, can be commercially used.
- As to the length of personality law, there is no need to worry since its number of articles is similar to that of inheritance law.
- Devising personality law as an independent chapter, and especially the addition of a real claim, would be a contribution to the civil law on family, and could be seen as a new Chinese feature. It is also the result of an increasing demand for the protection of personality.
At present, the supporters of an independent chapter are in the majority. It is likely that there will be a separate chapter on personality law in the future civil code. This separate chapter will enumerate specific personality rights, followed by a general personality right that is to be recognized.
A future blog will deal with the General Part of Obligation Law.