人格權에 關한 各國의 立法例 檢討

Abstract

We value our own nature intrinsically, and possess so-called interests or rights to free expressions of ourselves. The interests may come from relationships with others, or may remain only in our own sphere. It is personal rights that protect our interests. However, our civil law still fails to make positive provisions on personal rights, but abides by passive standpoints that violation of personal rights means a tort that meets basic requirements for justifying a claim for damages. In addition, with regard to general concepts on personal rights, majority opinions and judicial precedents in Korea consider Article 751 and 752 of Korean Civil Code just as cautionary and exemplary provisions for Article 750 of said Code. In the wake of examining the legislative examples in foreign countries on the rights of the personality, what is secured as the general right could be known to be the Declaration of the Rights of Man approved by the National Assembly of France in 1789. Following its spirit, the thought of human dignity is being realized by which the provision of elucidation is put even in Article 12 of the Universal Declaration of Human Rights, which was adopted at the United Nations General Assembly on December 10, 1948. There is no specified provision on the rights of the personality in France. However, it is the real situation of being still protected by the stipulation with saying that “each person has a right of the respect for its privacy” in Article 9 for the French civil law and by being stipulated in Article 16 of the civil law by the Law on Bioethics and Biosafety. The ground of the positive law, which was approved on the general rights of the personality in Germany is starting from being prescribed ‘the declaration on the dignity of man’ in Article I, Chapter I and ‘the manifestation on free personality’ in Clause I, Article II for the German constitutional law (fundamental law). And, the enactment as the general rights of the personality can be raised to be Article 704 (currently Article 823). Meanwhile, in case of America, it is being addressed by being divided into the right of privacy, which is the moral benefit, and the right of the publicity, which is the property profit. In case of Switzerland, it is composed of two laws such as Zivilgesetzbuch in 1907 and Obligationerecht in 1911, and the enforcement of the law began from January 1, 1912. Unlike the German civil law and the French civil law, the Swiss civil law is approving the general rights of the personality as one of the private rights. In the meantime, Japan had ever been discussed the American right of privacy from the 1920s after being translated into the right of the secrecy or the right of the secret, but it was quite negative. And, an opportunity, which came to cause a big concern, starts from after a case of “宴の あと.” Regarding a legal method, the rights of life, the body, freedom, and pursuit of happiness in Article 13 of the constitutional law were being seen as the provision of the ground for the individual rights of the personality. However, the infringement on the rights of the personality started to be recognized as the illegal act, by introducing theories of Germany and America since then. The civil law of Japan is regarding this as illegal act given the infringement on absolute right called the right of the personality. Either a leading case or a doctrine sees this as illegal act when the act of infringing on benefit, which has value enough to be protected even if there is no violation on a right, is unlawful, and is addressing it as an issue of illegality. As for a method of relief given the infringement on the right of the personality, a right of claim for damages, and a right of claim for prohibition as a means of restitution, are being acknowledged. In contrast to this, our country is being revealed demerits in each even in a method of relief. In Korea, Article 750 of Civil Code covers any kind of violation of personal rights, but it is advisable to apply this general provision with reference to legal protections available in Germany and USA. In other words, it is necessary to note that legal settlement functions as a sort of indemnification and sanction(punishment) in these two countries, and in case of intentional tort, American courts admit punitive damages even in early steps of procedure. Current Korean legal provisions on tort expose limitations in admitting preliminary reliefs for any violation of personal rights, so it is inevitable to suggest new legislative theories and it is also necessary to seek legislative resolutions based on intrinsic nature of personal rights. In a latest proposal for revision of Korean Civil Code, there has been a new legal provision prepared to stipulate general personal rights on general rules of Korean Civil Code, which has involved many associated discussions. But it is still difficult to legislate it under various obstacles. Conclusively, it will be recommended that legal provisions appropriate for Korean circumstances shall be prepared and legislated with rational decisions sooner or later for the benefit of respect for human rights.