Infringement of Personality Rights due to Non-Performance and Damages for Non-Pecuniary Loss
Date Issued
2016
Date
2016
Author(s)
Chen, Pei-Yin
Abstract
Personality rights are not only the inherent rights for personality achievement but also the foundation that people, as the legal entity, can enjoy all property rights, so that they are the core value to be protected by the Civil Code. In Taiwan Civil Code, the legal basis of non-pecuniary damages in infringement of personality rights was previously provided only in torts; until 1999, when the Part of Obligations of the Civil Code was amended, Article 227-1 was first added. 16 years have passed since Article 227-1 was applied. Whether Article 227-1 has fittingly exerted its system functions and what benefits apart from tort provisions it has brought for the protection of personality rights in Taiwan are the issues worthy of observation and exploration. First of all, in this article, whether there is the real benefit of Article 227-1 better than tort provisions in practice is observed through the statistics and analysis of judgments. Then, it is reviewed whether the legislation way of the mutatis mutandis of tort provisions in Article 227-1 may cause applicable doubts. Besides, for the inappropriateness of the mutatis mutandis of Article 197 short-term limitation period in Article 227-1, it is suggested that in the case personality rights are for contract performance interest, the application of Article 197 should be excluded through teleological reduction. Further, it is noted in this article that personality rights or other legal interests of personality can be the performance interest of contracts; therefore, in addition to incomplete performance, Article 227-1 should be also applicable to impossible performance and deferred performance so that Article 227-1 will be given with the applicable benefit being exclusive of non-performance and independent of torts. At last, in this article, through the concepts of the freedom-of-contract principle, it is attempted to safeguard personality rights or other legal interests of personality more completely in multiple and diversified contract types so as to give Article 227-1 with the positive significance higher than tort provisions.
Subjects
Article 227-1 of Taiwan Civil Code
Non-Performance
Torts
Personality Rights
Damages for Non-Pecuniary Loss
Type
thesis