Social Identity Factors in Judging the Civil Liability for Personality Right Infringement: Based on Article 779 of the Divisions of Civil Code (Draft)

摘要

The division of personality rights in the Divisions of Civil Code (Draft) of China stipulates the social identity, and regards social identity as one of the considerations in judging the civil liability for personality right infringement. This may be due to the fact that Chinese have long had unclear distinction between social identity and legal identity, and conceptually paid more attention to social identity than legal identity. In judicial practice, the judge and the parties also have a large number of considerations on identity factors in the sharing of responsibilities and the distribution of rights and obligations. Indeed, under the premise of formal equality and individuals' freedom development, there is inevitable difference between their substantive identities. However since modern times, the equality of personality in worldwide public and private laws has been established, and the concept of modern human rights also emphasizes the equality and freedom of people. The setting of the personality right in the Civil Code should comply with and guarantee the equality clause in the Constitution, and provide basic judicial guarantees for eliminating identity discrimination and realizing social justice. Legal workers should systematically isolate social identity from legal identity, face the factual differences between people, and use the compelling power of laws and policies to guide and adjust social distribution relations, correct some existing identity privilege status, and enhance the compensation to the weak.