民法上的姓名权
刘文杰民法上的姓名权
Right to Name in Civil Law
期刊名称：《法学研究》
期刊年份：
作者：刘文杰
单位：中国传媒大学
中文关键词：姓名权;身份一致性利益;姓名商业价值利益;侵权责任法
英文关键词：right to name;interest to keep one’s identity;commercial value of name;tort law
中文摘要：
姓名是自然人的人格特征之一。姓名之上的诸正当利益中，匿名的利益已由隐私权加以保护，防止发生错误的负面社会印象之利益已由名誉权、荣誉权加以保护，因此，姓名权保护的第一项利益为防止发生错误的正面及中性社会印象。由于商品经济条件下人格具有商业价值，这种人格财产利益应专属于本人，因此，姓名权保护的第二项利益为独占姓名的商业价值。由于姓名之外的其他身份信息同样可以标识特定主体，对于上述符号的保护，可以类推适用法律关于保护姓名权的规定。
英文摘要：
The right to name is a personality right, hence an absolute right. However, the object of this right is, different from those of other absolute rights provided by law, only a symbol, a combination of several Chinese characters. It is also quite ordinary that different people have the same name, which means a monopoly of a specific name does not exist. The author holds that such monopoly cannot exist given the reality that the amount of Chinese characters is limited and all people need a name. On the other hand, due to the uniqueness of each person, a right to monopolize one’s name should be recognized by law when the monopoly concerns to preserve the right connection of a particular name and its holder. In this respect right to name belongs to “right to keep one’s identity”. It should be noted that name is not only a sign guiding people to find out a particular person, but also an attribute of personality itself, for the latter is in modern law trinity of corporeal, spiritual and social existence and name is the very form of one’s social existence. An infringement on one’s name is thus attack to the personality of that person. Moreover, name as personality attribute has its economic value, thus can be commercialized by means of advertisements or other business propaganda. Courts in the U.S.have already observed the development of merchandising personality attributes such as image, name or even voice and awarded a new right in common law named publicity right to the exploited person. As China is member of continental legal system, legal protection of one’s interest to merchandise his name should be acknowledged as function of right to name.As to the relationship between the rights to reputation and honor and right to name in Chinese tort law, the author argues that the former two also belong to right to keep one’s identity because they aim to prevent any one from forcing derogating facts upon particular person, including by using one’s name. Therefore right to name should be limited to protect name-holder against fabricating neutral or even positive social impression which he will not. Besides, since there is no “general personality right” or right to keep one’s identity in Chinese tort law, right to name should be established as a substitute, thus make the personality protection full and complete.
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