중국 민법전 편찬과정에서의 중대한 논의 - 법제공작위원회의 인격권편 초안에 대한 비판

It is the basic policy established by the Central Committee of the Chinese Communist Party to divide the current civil laws and regulations into two stages and formulate a scientific legal system. However, the NPC Standing Committee suddenly enacted a draft of the Civil Code articles on personal rights without any notice, and at the time the replacement elections were underway, it put forward a proposal to collect opinions on the draft of the articles of personal rights. This is a behavior that ignores traditional Chinese legislative experience and goes against the common sense of legislation. The China Law Society accepted the opinions of individual scholars as general opinions of the whole legal profession and proposed to establish a personal rights section in the Civil Code. Treating the concept of personal rights, the concept of rights of the person, and the concept of property rights in the same manner is contrary to the provisions of the General Civil Law and the common sense of civil law. Personal rights are distinct from other civil rights. Because of its defensiveness, pre-existence, impossibility of definition, and speechlessness, the basic structure and legal logic of general civil rights cannot be applied to it. The draft of the personal rights articles, formulated according to the rights law system, can not become the norms of conduct and trial. Only the Liability Act on Personal Rights (The Tort Act) can become a judicial norm. As long as the legislators improve the rules of responsibility for illegal acts and criminal liability, they can fully protect the right of personality. In compiling the Civil Code, China should not follow the rules of the Ukrainian Civil Code and should refer to the beneficial legislative experience of developed countries.