인격권에 관한 입법제안

A Legislative Proposal on Personality Rights

Case law on personality rights has seen remarkable developments since the 1980s. In particular, cases concerning defamation by the media were a driving force in the development of the personality rights jurisprudence, eventually leading to the enactment of the Act on Press Arbitration and Remedies, etc. for Damage Caused by Press Reports. Article 5, Paragraph 1 of the Act defines personality rights as a right concerning life, liberty, body, health, reputation, maintaining secrecy in and enjoying the freedom of one’s private life, portrait, name, voice, dialogue, literary works, personal documents, and other values pertaining to one’s personality. The Draft Civil Law (Amendment) Bill 2004 submitted by the Ministry of Justice intended to include provisions on personality rights in “General Provisions”of the Civil Code. Although the Bill died as the parliamentary session ended, it was a meaningful legislative attempt in that it meant to include personality rights in the general rules governing the Civil Code. This attempt demonstrates that the subject area of civil law must encompass personality rights as well as property rights. The protection of one’s personality has become a major concern in the present era. Provisions on defamation scattered throughout the Civil Code may not serve as a strong basis for the full protection of personality rights; so far, case law and legal scholarship have played a role in filling the resulting gap in the Civil Code. Special laws with provisions conferring legal protection for personality rights have increased in number, and this trend is expected to continue. The Ministry of Justice Civil Code Revision Committee was established in 2009, and I suggest that comprehensive provisions on personality rights be included in the Civil Code. Based on the research on the subject conducted so far, this article makes a legislative proposal regarding personality rights for the purpose of the Civil Code (Amendment) Bill and explains why such amendment is required. In particular, this article proposes to introduce provisions for such subject matters as the definition of personality rights, grounds of justification, legal remedies for infringement of personality rights, the personality rights of the deceased, and the right of publicity, i.e., the right to control the commercial use of one’s name or portrait, followed by their draft provisions for review. Civil law should present fundamental norms governing human life. Civil law can be divided into property law and family law, each and together forming a normative system essential for our lives. This two-fold system was developed in light of the fact that the governance of property and the family is of utmost importance in human life. Now time has matured for the introduction of provisions on personality rights in the Civil Code. I look forward to the inclusion of the legislative proposal made herein in the upcoming new version of the Civil Code.