民法上的赔礼道歉责任及其强制执行
葛云松民法上的赔礼道歉责任及其强制执行
The Liability of Apology in Civil Law and its Compulsory Enforcement
期刊名称：《法学研究》
期刊年份：
作者：葛云松
单位：北京大学法学院
中文关键词：赔礼道歉;强制执行;谴责声明;替代执行;赔偿执行
英文关键词：apology;compulsory enforcement;a declaration of reprimand;substitutional enforcement;compensational enforcement
中文摘要：
赔礼道歉可以缓解受害人的精神痛苦，具有填补损害的功能，可以达到抚慰金所不能实现的效果，也符合普通民众的公平感，作为侵权责任的一种形式具有积极意义。但对赔礼道歉的间接强制执行违反了比例原则，构成违宪。公布判决书并不能获得与被告道歉相当的效果，并非一种适当的替代执行方式。由原告或者法院以被告名义草拟道歉启事并予以公布的观点也不妥当。而以受害人发表谴责声明而由被告负担其费用的方式替代执行，则不失为一种妥当的方式。如果受害人不选择以该方式强制执行，则可以请求被告支付一定的金额，其数额应由法院在判决书中确定。
英文摘要：
Apology is one of the forms of tortuous liabilities when a right of personality is infringed under Chinese law. Regarding whether this is a constitutional or reasonable rule in law, a heated argument is going on among Chinese scholars. This paper argues that, apology helps to redress a victim’s emotional and psychological wounds, therefore serves the function to repair harm just as other forms of tortuous liabilities. If the defendant fails to make an appropriate apology voluntarily before the end of court debate, the court should order the defendant to apologize in the judgment. Although an apology under a judgment may be insincere, it is still valuable for many victims. Moreover, based on the theory of cognitive dissonance, the judgment may induce the defendant to adjust his attitude and lead to a sincere apology. The most difficult part of this question is the compulsory enforcement of apology. This paper examines the possible measures of enforcement provided in the civil procedure law. Indirect enforcement measures, mainly fine or imprisonment, are unconstitutional in light of the principle of proportionality for violation of the freedom of expression, freedom of religion and human dignity protected by Chinese constitution. Publication of the content of judgment is not an appropriate form of substitutional enforcement because it cannot reach a similar effect as apology. Another suggestion, that the plaintiff or the court drafts a letter of apology on behalf of the defendant and publishes it when the defendant refuses to do so, also flaws. This paper proposes a special form of subsitutional enforcement that the victim should be allowed to publish a declaration of reprimand and the defendant should be ordered to pay the cost, because a reprimand by the victim could redress his emotional and psychological wounds as well as a personal apology of the defendant. If the victim doesn’t want to do so, a sum of money, the amount of which is determined in the judgment, should be paid by the defendant.
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