法人名誉权研究
发布时间：2019-06-25 11:46
【摘要】：法人享有名誉权这一问题在我国立法以及司法实践中均得到认可,法人这种创制的组织体享有自然人基于其伦理性所享有的人格利益,而对于这种人格利益享有的法律逻辑为何这一问题学界存在不同的看法。《民法通则》第101条将法人名誉权与自然人名誉权在同一条款进行规定,明确法人名誉权侵权参照自然人名誉权侵权规则适用,然而法人名誉权区别于自然人名誉权,简单类比适用存在问题,且导致名誉权适用范围扩大到包含机关法人在内所有法人,出现名誉权滥用,在一定程度上与公民言论自由、舆论监督等价值产生冲突。《民法总则》第110条有意将法人名誉权与自然人名誉权分置两款,提高法人名誉权的保护地位。运用法解释学方法,以法人拟制说及法律工具论为理论前提得出法人享有名誉权的法律逻辑,主张法人的名誉实质是一种形式层面的归属。法人名誉权与自然人名誉权是一种派生关系。人格权制度在体系结构上以自然人享有的人格利益为原型塑造,目的在于保护自然人生理、心理的以团体等特定形式存在的人格利益,在属于自然人的一些法益中,以某种团体形式存在的人格利益可以通过赋予法人相应权利进行保护。而对于生命、健康、身体等法益本身不能以团体形态存在的也就没有法律保护之必要。法人作为一种创制的组织体不具有伦理性,但从法律的工具价值出发,可运用法律技术认可法人享有名誉权等权利。只要制度设计符合法律规范所要实现的目的即可。法人拟制说在处理团体整体及成员个人关系上更具灵活性,更能发挥法人制度的工具价值。法人名誉权是私益和公益的结合体。从私益角度分析,赋予法人名誉权,一方面有助于实现法人设立的最初目的,保障法人的经营自由和独立发展,另一方面,拟制的法人作为自然人能力的延伸可以帮助自然人更好地实现个人的生存和发展,最终实现人类的根本价值。从公益的角度分析,法人承担着重要的社会职能。对于营利性法人而言,赋予其名誉权,可以保证其在激烈的市场竞争中免受同业竞争者的恶意诽谤,实现独立自主经营,为社会创造更多财富。对于非营利性法人而言,其通常承担更多社会服务职能,赋予其名誉权有助于维护与其有利害关系的不特定多数人的利益。对名誉权的保护势必会与舆论监督、言论自由等价值发生冲突。《民法总则》第三章以是否营利为标准采用结构主义分类方式将法人分为营利性法人和非营利性法人,将机关法人列为特别法人。对于营利性法人和非营利性法人而言,基于公益和私益结合的利益基础,应当认可其名誉权。而对于特别法人而言,为了保证公民对行政行为的监督,应当否认其享有名誉权。新出台的《民法总则》将法人名誉权与自然人名誉权在同一法条中分款规定,对法人名誉权予以宣示性规定,体现了民法典对法人地位的重视,也透露出立法有意将自然人名誉权与法人名誉权分开立法的思路。《侵权责任法》对于法人名誉权和自然人名誉权侵权规则并没有加以区分,使得司法实践在法人名誉权侵权的构成要件的认定、责任承担方式的选择方面存在不统一的情况。民法典中的民法分则侵权责任编应通过特别条款对法人名誉权侵权的构成要件、责任方式予以详细规定,从而实现对法人名誉的周延保护。
[Abstract]:The issue of the legal person's right to reputation is recognized in our country's legislation and in the judicial practice. The legal logic of this kind of personality benefit has different views on this issue. In that general rule of civil law, the right of the legal person and the right of the natural person are specified in the same article, and the infringement of the right of the legal person to the right of the right of the right of the natural person is applicable, however, the right of reputation of the legal person is distinguished from the right of the natural person, and the simple analogy is applicable to the question. And the application scope of the reputation right is expanded to all legal persons, including the legal person of the organ, and the abuse of the reputation right occurs to a certain extent, such as the freedom of expression of the citizens, the supervision of the public opinion and the like. The general principle of civil law> Article 110 intends to separate the reputation right of the legal person and the right of the natural person into two paragraphs, so as to improve the protection status of the legal person's reputation. Using the method of hermeneutics, the legal logic of the legal person's reputation right is obtained based on the legal instrument theory and the legal instrument theory, and the reputation of the legal person is the home of a form level. The right of reputation of the legal person and the right of the natural person is a derivative. The personality right system is shaped by the personality benefit of the natural person on the system, the purpose is to protect the physical and psychological personality interests of the natural person, and in some legal interests of the natural person, The interests of the personality that exist in the form of a certain group can be protected by the application of the corresponding rights of the legal person. For life, health, body, etc., it is not necessary for legal protection to exist in the form of a group. As a kind of organized body, the legal person does not have the ethics, but from the value of the legal instrument, it can use the legal technology to recognize the right of the legal person to enjoy the right of reputation. As long as the system design is in accordance with the purpose of the legal specification. The legal person is to say that it is more flexible in dealing with the whole body and the member's personal relationship, and can play a better role in the tool value of the legal person system. The right of reputation of a legal person is a combination of private and public interests. On the other hand, the extension of the legal person as the natural person's ability can help the natural person to better realize the survival and development of the individual. And finally the fundamental value of the human is realized. From the point of view of the public good, the legal person assumes the important social function. In the case of a legal person, the right to reputation can be guaranteed to protect against the malicious libel of the competitors in the fierce market competition, to realize the independent operation and to create more wealth for the society. For non-profit legal persons, they usually assume more social service functions, giving their right of reputation to the maintenance of the interests of a non-specific majority with a stake in it. The protection of the right of reputation is bound to conflict with the value of public opinion, freedom of expression and so on. The General Principles of Civil Law> Chapter 3 classifies the legal person into a legal person and a non-profit legal person by adopting the structuralism classification method as the standard, and the corporate legal person is listed as a special legal person. For legal and non-profit legal persons, the right of reputation should be recognized on the basis of the benefit of the combination of public welfare and private benefit. In the case of the special legal person, in order to guarantee the citizen's supervision over the administrative act, it should be denied the right of reputation. The new general principles of civil law, in which the right of reputation of a legal person and the right of reputation of a natural person, in the same law, provides for the definition of the right of reputation of a legal person, which reflects the importance attached to the legal personality of the civil code. It also reveals the idea that the legislation intends to separate the right of the natural person and the legal person's reputation right. The law of tort liability is not divided between the legal person's reputation right and the natural person's reputation right infringement rule, so that the judicial practice is not unified in the determination of the constituent elements of the legal person's reputation right infringement and the choice of the responsibility assume mode. In the civil code, the civil law is divided into the constituent elements of the infringement of the right of reputation of the legal person through the special provisions, and the method of responsibility shall be specified in detail so as to realize the protection of the reputation of the legal person.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
本文编号：2505658
[Abstract]:The issue of the legal person's right to reputation is recognized in our country's legislation and in the judicial practice. The legal logic of this kind of personality benefit has different views on this issue. In that general rule of civil law, the right of the legal person and the right of the natural person are specified in the same article, and the infringement of the right of the legal person to the right of the right of the right of the natural person is applicable, however, the right of reputation of the legal person is distinguished from the right of the natural person, and the simple analogy is applicable to the question. And the application scope of the reputation right is expanded to all legal persons, including the legal person of the organ, and the abuse of the reputation right occurs to a certain extent, such as the freedom of expression of the citizens, the supervision of the public opinion and the like. The general principle of civil law> Article 110 intends to separate the reputation right of the legal person and the right of the natural person into two paragraphs, so as to improve the protection status of the legal person's reputation. Using the method of hermeneutics, the legal logic of the legal person's reputation right is obtained based on the legal instrument theory and the legal instrument theory, and the reputation of the legal person is the home of a form level. The right of reputation of the legal person and the right of the natural person is a derivative. The personality right system is shaped by the personality benefit of the natural person on the system, the purpose is to protect the physical and psychological personality interests of the natural person, and in some legal interests of the natural person, The interests of the personality that exist in the form of a certain group can be protected by the application of the corresponding rights of the legal person. For life, health, body, etc., it is not necessary for legal protection to exist in the form of a group. As a kind of organized body, the legal person does not have the ethics, but from the value of the legal instrument, it can use the legal technology to recognize the right of the legal person to enjoy the right of reputation. As long as the system design is in accordance with the purpose of the legal specification. The legal person is to say that it is more flexible in dealing with the whole body and the member's personal relationship, and can play a better role in the tool value of the legal person system. The right of reputation of a legal person is a combination of private and public interests. On the other hand, the extension of the legal person as the natural person's ability can help the natural person to better realize the survival and development of the individual. And finally the fundamental value of the human is realized. From the point of view of the public good, the legal person assumes the important social function. In the case of a legal person, the right to reputation can be guaranteed to protect against the malicious libel of the competitors in the fierce market competition, to realize the independent operation and to create more wealth for the society. For non-profit legal persons, they usually assume more social service functions, giving their right of reputation to the maintenance of the interests of a non-specific majority with a stake in it. The protection of the right of reputation is bound to conflict with the value of public opinion, freedom of expression and so on. The General Principles of Civil Law> Chapter 3 classifies the legal person into a legal person and a non-profit legal person by adopting the structuralism classification method as the standard, and the corporate legal person is listed as a special legal person. For legal and non-profit legal persons, the right of reputation should be recognized on the basis of the benefit of the combination of public welfare and private benefit. In the case of the special legal person, in order to guarantee the citizen's supervision over the administrative act, it should be denied the right of reputation. The new general principles of civil law, in which the right of reputation of a legal person and the right of reputation of a natural person, in the same law, provides for the definition of the right of reputation of a legal person, which reflects the importance attached to the legal personality of the civil code. It also reveals the idea that the legislation intends to separate the right of the natural person and the legal person's reputation right. The law of tort liability is not divided between the legal person's reputation right and the natural person's reputation right infringement rule, so that the judicial practice is not unified in the determination of the constituent elements of the legal person's reputation right infringement and the choice of the responsibility assume mode. In the civil code, the civil law is divided into the constituent elements of the infringement of the right of reputation of the legal person through the special provisions, and the method of responsibility shall be specified in detail so as to realize the protection of the reputation of the legal person.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923
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