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通过对人格权定义及其特征的学说的考察,可以得出“人格权具有固有性”已成为民法学界通说的结论。人格权固有性理论的产生,直接源于学者对人格与人格权的概念及其相互关系的认识,同时也与受大陆法系人格的伦理价值法律保护传统的影响有关。然而,“人格权固有性”既与人格权理论相悖,也与我国人格权立法现状不符。因此,“人格权固有性”实则理论谬误,人格权并不具有整体上的固有性。
Through the study of the theory of personality definition and its characteristics, we can conclude that “the personality right has inherentness” has become the conclusion of civil law scholarship. The emergence of the inherent theory of personality right derives directly from the scholars’ cognition of the concept of personality and personality rights and their mutual relations, and is also related to the influence of the ethical value law protection tradition of personality in the civil law system. However, “the inherent nature of personality rights” is not only contrary to the theory of personality rights, but also inconsistent with the status quo of the legislation of personality rights in our country. Therefore, “the inherent nature of personality ” is actually a theoretical fallacy, personality rights do not have the overall inherent.