作者：刘德良
作者介绍：中南财经政法大学法学院教授
出版日期：2023年8月9日
内容提要 现行人格权理论认为，人格权是自然人对自我人格利益享有的权利，与亲属无关；这从法理和逻辑上切断了人格权与身份权的内在联系。由此，不仅使得立法和司法上承认侵害生命权案件中亲属的损害赔偿权的做法与人格权理论相悖，而且也极大地弱化了人身权的理论基础。拒绝承认其他人格侵权案件中亲属的损害赔偿请求权的做法有悖于人性和亲情，因为每个人的人格利益不仅包括自我人格利益，也包括对亲属的人格要素所享有的人格关爱利益。以对亲属的人格关爱利益为客体的权利即身份人格权，它与自我人格权一起构成个人人格权的完整内涵。身份人格权既是人格权的一种，又属于身份权的一类，是人格权和身份权的公因子，为人身权理论构建和亲属损害赔偿请求权提供了依据。承认身份人格权， 是构建科学人身权理论、适应未来社会发展的客观需要，既符合人性和现代法治的基本理念，也符合中华文化传统。
关键词 人身权 人格利益 身份利益 自我人格权 身份人格权
Abstract: According to the current personality right theory, personality right refers to all kinds of rights that a natural person enjoys for his own personality interests, and has nothing to do with his relatives. This cuts off the internal relationship between the personality rights and the rights based on relation from jurisprudence and logic. Therefore, it not only makes that the legislative and judicial recognition of the relatives’ right to compensation for damages in cases of infringement of the right to life is contrary to the theory of personality right, but also greatly weakens the theoretical basis of personality rights. In fact, refusing to recognize relatives’ claim for damages in other cases of personality infringement is contrary to human nature and affection, because everyone’s personality interests include not only his self-personality interests, but also the personality interests enjoyed for the personality elements of the relatives. The right that takes the relatives’ personality concern interest as the object is the personality right based on relation, which together with the self-personality right constitutes the complete connotation of the individual personality right. Personality right based on relation is not only a kind of personality right, but also a right based on relation, which is the common factor of personality right and relation-based right. It provides a basis for the theoretical construction of personal rights and the claim for compensation for relatives’ damages. Recognizing the right of personality based on relation is the objective need to construct a scientific theory of personal rights and adapt to future social development, which is not only in line with the basic idea of human nature and modern rule of law, but also in line with the Chinese cultural tradition.