Social Sciences in China (Chinese Edition)

No.7, 2013

 

The Right Not to Speak and the Protection of Personality Rights: Centering on the Civil Liability of Apology

(Abstract)

 

Zhang Hong

 

The conflicts between the freedom of speech and the protection of personality rights include the conflict between the freedom of expression and the protection of personality rights and the conflict between the right not to speak and the protection of personality rights. Both belong to conflicts of basic rights. The conflict between the right not to speak and the protection of personality rights should be regulated by two civil liabilities: elimination of ill effects and rehabilitation of reputation through appropriate explanation, and apology. Aplology is a legal liability prevailing in the Chinese legal system, and is widely recognized in comparative law. As a civil liability, it plays an indispensable role in fighting against money worship and in maintaining the ethical nature of civil law. Eliminating ill effects and restoring reputation and apology, both as civil liabilities, comply with the Constitution. While the former is the statement of a fact targeted at libels, the latter is the expression of an opinion targeted at insults. In the former case, the judgment debtor can be enforced to clarify the fact and recover the truth, whereas in the latter, the judgment debtor cannot be enforced to repent and apologize, though justice is proclaimed through a verdict. The rule of good law should awaken the conscience of people. Law and morality should attend to their own affairts to ensure the development of personality rights.