论文部分内容阅读
人格权是一项民事权利,人格权立法的核心问题是要消解人格权事实性与规范性之间的张力,从人格权的集体意向性和动态有效性的交往理性视角来构建人格权的合法性基础。本文以哈贝马斯的交往行为理论与商谈理论为视角,确立人格权的合法性要以主体间的商谈为前提条件,以公共领域为基础,在合理的商谈程序中就内在人格的内涵与外在人格的外延变化等问题达成一致,最终使得人格权的立法符合主体间的内在共识。
Personality right is a civil right. The core issue of personality right law is to relieve the tension between the factuality and the normativeness of personality right, and to construct the legitimacy of personality right from the perspective of communicative rationality of collective intentionality and dynamic effectiveness of personality right basis. In this paper, Habermas’s communicative behavior theory and discussion theory as the perspective, the establishment of the legitimacy of personality rights should be subject to negotiations as the prerequisite for the public domain as the basis, in a reasonable process of negotiation on the intrinsic personality of the connotation and The extension of external personality and other issues to reach an agreement, eventually making the legislation of personality rights in line with the internal consensus between the main body.