Introduction to the case]

At noon on August 1, 1999, Wang and his wife went to Xiangyang Pavilion Hotel, a subsidiary of Baoji Xiangyang Catering Co., Ltd., for a meal. During the meal, two women brought Beijing Ba dogs and fed them the food bought by the restaurant on the table, using the common tableware of the restaurant. Wang believed that his personal dignity had been violated, so he sued the Consumer Protection Law and requested the restaurant to compensate 25,111 yuan. The court held that the restaurant was not intentional and did not comply with Article 25 of the Consumer Protection Law, and dismissed the plaintiff's lawsuit.

[ Different opinions on this case ]

The first view is that the obligation clause of the operator stipulated in the Consumer Protection Law means that Article 25 stipulates that "the operator shall not insult or slander the consumer, search the consumer's body and the articles he carries, or infringe on the personal freedom of the consumer. The restaurant did not insult or slander consumers, which did not constitute an infringement of the plaintiff's rights.

The second view is that the personal dignity of citizens is protected by law, and Article 25 of the Consumer Protection Law cannot be narrowly understood. In fact, the Law on the Protection of Consumers' Rights and Interests is to protect citizens' personal dignity and their general personality rights. The court's handling is incorrect.

[ legal analysis ]

I. Overview of general personality right

(I) The emergence and development of the concept of general personality right

From the perspective of the history of the development of the whole personality right law, it has experienced a process from specific personality right to general personality right.

in the ancient common law period and the ancient written law period, the law has no general concept of personality right, but only specific personality right. The right to life, health and body appeared first, and then there were the rights of reputation, chastity and freedom.

during the Roman law period, the three concepts of freedom, civil rights and reputation rights in Roman law included some contents of modern general personality rights, and they were the seeds of the concept of general personality rights.

in modern times, many specific personality rights have been produced one after another, and people realize that there is a general concept of commanding many specific personality rights, that is, general personality rights. For such a general concept of personality right, neither the French Civil Code nor the German Civil Code has paid attention to it, so there is no provision for it in these two codes. In the process of drafting the Swiss Civil Code, the drafter of the code, such as Huber, attached great importance to the protection of personality rights, so in the draft of the code, it was written that "anyone whose personality has been illegally violated may request to remove the nuisance and compensate for the damage, and may also request a certain amount of money to make compensation according to the situation." Aft that second world war, the importance attached by various country to personal dignity was also reflected in the code. Article 823 of the German Civil Code does not stipulate general personality rights, nor does it stipulate other specific personality rights such as reputation rights. But after the war, the German Basic Law stipulated: "Human dignity shall not be infringed. Respecting and protecting human dignity is the obligation of all state powers (organs). ""Everyone has the right to develop his personality freely within the scope of not infringing on the rights of others and violating the constitutional order or public order and good customs. " This constitutional provision clearly stipulates-'general personality rights. As the principle of general personality right is stipulated in the Constitution, but not in the Civil Code, German courts have created case law on civil law protection of general personality right based on the principles established in the Basic Law.

In Japan, there is no general provision on personality right in the original civil law. After the war, the Constitution was amended, and Article 13 of the Constitution stipulated: "All citizens' personalities are respected. "Put forward the general constitutional principle of general personality right. In order to coordinate the civil law with the Constitution, Japan immediately enacted the Law on Emergency Handling of Civil Law after the Implementation of the Constitution of Japan on April 9, 1947, which was implemented on the same day as the Constitution to meet the urgent need. Article 1 of the law stipulates: "The purpose of this law is to consider emergency measures on the basis of personal dignity and gender equality in civil law after the implementation of the new constitution." At the beginning, the general personality right is clearly defined. On October 1 of the following year, the Law on Correcting Part of the Civil Law was officially implemented, and Article 1 bis was set in the Civil Law: "This Law shall be interpreted with the dignity of the individual and the equality between the sexes as its purpose." The principles of the Constitution are implemented in the civil law, and the general personality right is confirmed and protected by the civil law.

The Russian Federation adopted the Declaration on the Rights and Freedoms of People and Citizens in October, 1991. The first sentence in the preface pointed out: "It is recognized that human rights and freedoms and their personality and dignity are the highest values of society and the country." In the most prominent position, it stipulates the general personality rights of citizens.

(II) Concept and characteristics of the general personality right

In modern times, various countries have gradually attached importance to the protection of the general personality right, but the connotation of the general personality right has not been clearly defined in the legislation of various countries. Scholars understand the general personality right from different angles, and put forward the theory of personality relationship, the theory of general right, the theory of origin right and the theory of protection of individual basic rights.

based on the characteristics of the general personality right, the concept of the general personality right is defined as follows: the general personality right is relative to the specific personality right and is enjoyed by citizens and legal persons, which summarizes the general personality interests of all contents of personality independence, personality freedom and personality dignity, and thus produces and stipulates the basic rights of the individual personality right. Compared with the specific personality right, the general personality right has the following legal characteristics:

First, the subject is universal.

the subjects of general personality rights include both citizens and legal persons, all of which are enjoyed as a whole, and citizens and legal persons are equal. As long as a person (including a citizen and a legal person), regardless of his political status, identity and ability in society, and his differences in economic ability, enjoys the general personality right equally and universally, and stays with his personal attributes for life until his death or extinction.

second, the object of rights is highly general.

The object of general personality right is general personality interest, which is highly generalized. This generality includes two meanings. First, the generality of general personality interest itself, and personality independence, freedom and dignity cannot be transformed into specific personality interests, nor can they become the objects of specific personality rights. Second, the general personality interest is a summary of all the objects of specific personality rights, and any object of specific personality rights can be summarized in the general personality interest. Therefore, the general personality right becomes the origin of the specific personality right, which produces and stipulates the specific personality right.

third, the universality of rights.

the content of general personality right includes not only the content of specific personality right, but also the personality interests that specific personality right can't contain. It is not only a collection of specific personality rights, but also provides a practical and reliable legal basis for supplementing and perfecting the legislation of specific personality rights. People can seek legal protection according to the legal provisions of general personality rights when their personal interests are damaged, but they cannot be relieved by specific personality rights.

fourth, the general personality right is the basic right of people.

compared with specific personality rights, general personality rights are basic rights. Although the general personality right has a general effect on the specific personality right, it is also an independent civil right and a basic right in personal rights. On the one hand, it determines and derives various specific personality rights, on the other hand, it is more abstract and general, and becomes the most abstract and typical basic personality right among personal rights. As Hubmann, a German scholar, said, the general personality right is different from the personality right itself, and also different from the specific personality rights, but the basic rights of individuals. Denying the general personality right actually denies the basic rights of individuals.

(III) Functions of the General Personality Right

As a basic right of individuals, the General Personality Right has the following functions:

First, it has the function of explanation.

Because of its high generality and abstraction, the general personality right becomes the mother right of the specific personality right, and the basic right with guiding significance to all specific personality rights, which determines the basic nature, specific content and the distinction between each specific personality right and other specific personality rights. Because of this, the general personality right has the function of explanation for the specific personality right. When explaining the specific personality right, we should take the basic principles and characteristics of the general personality right as the standard, and the explanation that goes against the basic principles of the general personality right will be invalid this year.

besides the explanatory function of general personality right in academic interpretation, it also has the explanatory function in judicial application. How to apply the legislation of specific personality rights should also be explained according to the basic principles of general personality rights, and the legal application of specific personality rights should not violate the requirements of the basic principles of general personality rights. For example, many people's courts interpret the constitution of liability for infringement of portrait rights as an essential element when applying Article 111 of the General Principles of Civil Law. According to the basic principle of general personality right, personal dignity does not have real economic value, and the infringement of personal dignity does not only constitute infringement when it has economic purposes, but it should bear tort liability no matter what purpose it is for or without any purpose, as long as it constitutes damage to personal interests. The explanation that the constitution of liability for infringement of portrait right must have profit-making purpose violates the basic principle of general personality right and is invalid. This explanation is also wrong, and it is even more wrong to guide judicial practice.

second, create functions.

General personality right is the source right of specific personality right. In modern civil legislation, a large number of personality rights have been created, which makes the specific personality rights reach more than a dozen, and there are so many kinds that other rights cannot be compared. All these rights are created according to the origin of general personality rights. In statutory countries, the creative function of general personality right is more obvious. Any right stipulated by a written law country must be clearly stipulated by law, and there is no right without explicit provisions. The limitations of this written legislation, the confirmation and protection of the specific personality rights of freshmen, are not barrier-free. To correctly use the creative function of general personality right, we can rely on general personality right to create specific personality right and apply it in practice.

Taking Germany as an example, the German Civil Code does not stipulate the right to privacy, but the German court has created a precedent to protect the right to privacy through the case of Princess Sophia. Its basis is that the German Constitution clearly stipulates that personal dignity should be protected by law, while private law recognizes the existence of general personality rights. It fully embodies the creative function of general personality right.

third, supplementary functions.

the general personality right is also a kind of flexible right, which is highly inclusive. It can not only summarize the existing specific personality right, but also create new personality rights. It can also play a supplementary role in other personality interests that have not been confirmed and protected by the specific personality right, and summarize these personality interests among the general personality interests, and protect them by the general personality right. When these personal interests that are not summarized by specific personality rights are infringed, they can be recognized as tort according to the infringement of general personality rights, and the actor's tort liability can be investigated to relieve the damage of his personal interests. For example, the object of the right of reputation is the evaluation of society, but not the sense of reputation. When the insult does not reduce the social evaluation of the victim, but only causes the victim's reputation to feel serious damage, the victim can't get relief according to the infringement of the right of reputation. However, because the sense of reputation is related to personal dignity, the damage of the sense of reputation is actually manifested as the damage to personal dignity, which is an infringement of the general personality interests and the general personality rights, so the victim can request damage relief according to the infringement of the general personality rights.

second, the content of general personality right

The content of general personality right is extremely extensive, which includes three items in a nutshell: independence, personal freedom and personal dignity.

1. Independent personality.

the essence of personality independence is that civil subjects enjoy personality independently, which shows that all civil subjects are equal in personality. Before the law, any civil subject enjoys equal subject qualification and independent personality, and is not subject to domination, interference and control by others. It includes:

First, the personality of the civil subject is not dominated by others. Subjective personality is born equal and independent. This independent personality is dominated only by the subjective self, according to the needs of one's spiritual life and material life, and cannot be dominated by anyone else. Prohibiting others from dominating the personality of the right subject is the basic requirement to ensure the independence of personality. Anyone who dominates the personal interests of others is undoubtedly denying the independent personality of the subject of rights.

second, the personality of the civil subject is not interfered by others. The qualification of being a person with personality as the subject of rights; The protection of personality independence should be decided by the will of the subject of rights, and others have no right to interfere. When the right subject defends his personality independence, he requires others not to interfere with him. If there is interference, he has the right to seek judicial protection. For example, interfering with others' marital autonomy is essentially interfering with citizens' independent personality, thus causing inequality in people's status.

Third, the personality of the civil subject is not controlled by others. In Roman law, there are concepts of "owner" and "owner". Although both the owner and the owner are free men, the personality of the owner must be controlled by the owner. The owner of another right can only carry out civil activities with the consent of the owner of the right. In the early civil legislation of the bourgeoisie, there was also legislation that some people controlled the personality of others. For example, the wife's personality was controlled by her husband's personality, so the wife had no independent personality, or her personality status was not completely independent. Modern law completely negates the concepts of self-obligee and others, and requires everyone to have equal rights and independent status and not be controlled by anyone else. Any behavior that controls the personality of others is a serious infringement.

2. Freedom of personality.

As the content of general personality right, personality freedom is abstract freedom in private law, which is neither personal freedom nor political freedom. Personal freedom has been clearly stipulated in China's Constitution, the State Compensation Law and the Consumer Protection Law, and its specific content is freedom of body and will. It is a specific personality right. Political freedom is the freedom of speech, the freedom of the press, the freedom of assembly, the freedom of association, the freedom of procession, the freedom of demonstration, and the freedom of religious belief stipulated by the Constitution. It is a political right enjoyed by citizens and the freedom of personality as a general personality right in public law, including the following two aspects: first, the freedom to maintain personality. Maintaining personality freedom means that the subject maintains his freedom to be a man. Anyone who tries to turn others into private property infringes on the freedom to maintain personality.

second, the freedom to develop personality. Personality is an innate qualification, but during its existence, the subject can adopt various methods, such as receiving education, assiduous cultivation, continuous study, strengthening exercise, receiving treatment, etc., to develop his personality, improve his personality, make himself a more perfect and perfect person, and improve his social status, qualifications, experience and popularity. In these aspects, the right subject should have full freedom to develop and perfect his personality. Prohibiting others from receiving education, restricting others from receiving treatment, etc., all restrict and interfere with the freedom of the right subject to develop personality, which is an infringement of the general personality right.

3. Personal dignity.

Personal dignity refers to the minimum social status that a civil subject should have as a person, and should be respected by society and others at the minimum. Personality dignity is not the same as personality independence and personality freedom in nature. Personality independence is the objective status of human beings, and personality freedom is the subjective state of human beings. And personal dignity is one