Civil subjects engage in civil activities by themselves or by entrusting others according to their will, all of which revolve around civil rights. The right of civil subject is the core concept of private law and the ultimate abstraction of the diversity of legal life. [1] Many scholars call the "Civil Code" as the "code of rights". In order to highlight the respect for civil rights, strengthen the protection of civil rights, and also provide a basis for the civil rights specifically stipulated in various parts and special civil and commercial laws, the general provisions compile the top-level design of the civil rights system, and set up a special chapter to comprehensively and systematically stipulate the types and contents of civil rights enjoyed by civil subjects, as well as the acquisition and exercise of rights.

At the same time, as the corresponding concept of civil rights, civil liability is also an important system to ensure the realization of civil rights. In order to reflect the functions of legal education, standardization and guidance, and to reflect the scientificity, systematization and standardization of legislation, as well as to provide general provisions for various civil liabilities in each sub part, the general part also sets up a special chapter to stipulate the types of civil liabilities, ways of undertaking, reasons for exemption and concurrence of liabilities.

Since the general principles of the civil law, the style and structure of the two chapters of civil rights and civil liability have been widely accepted and familiar by the broad masses of the people and legal workers. The general principles continue the practice of the two chapters of civil rights and civil liability stipulated in the general principles of the civil law, which are set before and after civil legal acts and agents.

The fifth chapter of the Civil Code stipulates "civil rights", with a total of 24 articles. With the personal rights and property rights of the classification of right objects as the clear line and the domination and claim rights of the classification of right realization as the dark line, it stipulates the personality rights, identity rights, inheritance rights, shareholders and other investment rights, intellectual property rights, real rights, creditor's rights, other civil rights and interests enjoyed by civil subjects, and the protection of data and network virtual property, Special protection of the civil rights of minors, the elderly, the disabled, women, consumers, etc., as well as the acquisition and exercise of civil rights.

The thinking map of the chapter on civil rights is as follows:

一、 System of civil rights

Articles 109 to 128 of the civil code stipulate various civil rights and form a system of civil rights:

First, most of the provisions of the sub parts of the civil code and the separate civil and commercial law are the concretization and implementation of the provisions of this chapter. For example, the personality rights part is the concretization of articles 109 to 111; Marriage and family series is the embodiment of Article 112; The title of real right is the concretization of articles 113 to 117; Contract and tort liability are the concretization of articles 118 to 122; "Patent law", "trademark law", "copyright law" and so on are the embodiment of article 123; The succession part is the concretization of Article 124; The company law, partnership law, sole proprietorship law, etc. are the concretization of Article 125.

Secondly, the right of claim is classified. As a right of remedy, the right of claim arises from the basic right. The right of claim can be roughly divided into the right of personality, the right of kinship, the right of real right, the right of creditor's right and so on. The normative basis of each claim is also roughly in the specific norms of the corresponding jurisdiction or legal relationship. The different types of claims indicate the different normative bases applicable to the case. Civil law norms are numerous. In order to save costs and improve accuracy, a certain inspection sequence based on the consideration of purposiveness is called necessary. The civil rights system summarized and sorted out in the civil code can also be used as a reference for the inspection sequence of the right of claim.

The specific content and system of civil rights are as follows:

（一） Personal rights

Personal right is a hypothetical name opposite to property right, which is not a primitive with definite meaning. The personality right and identity right mentioned above belong to this category [3]. The basic function of the right of personality is to maintain the legal personality of the civil subject and make it realize the legal effect of why people are human beings. Therefore, the right of personality is the dominant right and the basic right in the right of personality; The right of identity is to maintain the specific status of people and the rights and obligations of each other in kinship groups and business groups composed of blood relations, personnel relations and commercial relations. In fact, the right of identity is based on the existence of personality rights, and the right of identity is the expansion and extension of personality rights.

The first need of people is the need of survival. The right of personality is the legal expression of people's survival needs. According to the object and function of rights, the right of personality is divided into general personality right and specific personality right:

1. General personality right

(1) Basic content of general personality right

The general personality right is the abstract generalization of the personality interests enjoyed by the right subject according to law, and the object is the general personality interests, which is the symbol of the general form of the personality right from the perceptual concrete form to the rational. Article 109 of the civil code summarizes the general personal rights of natural persons as personal freedom and personal dignity. Personal freedom, including freedom of physical action and freedom of independent decision, is the basic guarantee for natural persons to exercise other personal rights and property rights, and is the premise and foundation for natural persons to exercise all other rights. Human dignity, including static and negative human dignity, that is, personality formation; It also includes dynamic and positive human dignity, that is, human development. Inviolability of human dignity is one of the basic conditions for natural persons as human beings.

(2) The significance and legislation of general personality right

All human rights are based on personal freedom and dignity. Of course, they also include personal independence and equality. They are the premise and foundation for natural persons to participate in various social activities and social relations. The right of general personality sprouted in the Roman law period. Since modern times, Huber, the drafter of the Swiss civil code, and others have put forward the concept of the right of general personality, which has been confirmed in legislation. [4] Before the promulgation of the civil code of China, the general personality rights of natural persons had been protected through three-dimensional legal provisions: first, Article 38 of the constitution, second, Article 101 of the general principles of the civil law, and third, separate law provisions such as Article 39 of the law on the protection of women's rights and interests, Article 5 of the law on the protection of minors, Article 3 of the law on the protection of the disabled, and Article 14 of the law on the protection of consumer rights and interests.

(3) In judicial practice, the general personality right plays a leading role in the subordinate articles.

This article is general and inclusive. In the process of case trial, especially in the process of legal interpretation, attention should be paid to whether the application and interpretation of relevant specific legal provisions on personality rights are consistent with this article. In infringement cases, if there is no specific provision applicable to the relevant infringement, in order to give full play to the supplementary function of the provisions of general personal rights, the people's court can refer to the application of this article, and directly recognize the acts that infringe on the personal freedom and personal dignity of natural persons as infringement, so as to protect the general personal rights of natural persons.

2. Specific personality right

The right of specific personality is to take each specific personality interest as the object, adjust and protect various specific personality interests. The civil code has two provisions.

(1) Specific personality rights are generally listed.

Article 110 of the Civil Code stipulates the specific personality right by way of generalization and enumeration. The specific personality rights listed in this article are divided into the personality rights of natural persons, legal persons and unincorporated organizations according to the different subjects of rights; According to the different objects of rights and legal protection methods, it is divided into material personality rights and spiritual personality rights. The material personality right includes the right to life, the right to body and the right to health, which is the right to set the personality interests embodied in the material manifestations of natural persons; Spiritual personality rights include name rights, name rights, portrait rights, reputation rights, honor rights, privacy rights, marriage autonomy and other rights. Revealing the different principles and legal protection methods of the division of personality rights is of great significance for guiding judicial practice to correctly apply the law. It should be noted that the personality rights of natural persons, legal persons and unincorporated organizations are generally enumerated in this law, which not only points out the key points, but also avoids legal loopholes, so as to ensure the realization of the purpose of the law and the stability of the legal order.

(2) The specific personality right is a separate provision - the right of personal information.

Article 111 of the civil code is about the right to personal information, which is a new provision this time. With the development of modern information technology, the unprecedented simplification and convenience of information exchange has not only brought great changes to social life, but also brought threats to personal information security, especially the theft of information by crawler technology and the improper use of user portraits and personal preferences. The disclosure and improper use of personal information, from the initial technical problems to the current social and legal problems, has gradually become the focus of the whole society and the world.

Other countries and regions have carried out legislation and Research on personal information protection relatively early, which is related to the early entry of industrialized countries into the information society. For example, the federal personal data protection act of Germany, the information technology and Freedom Act of France, the data protection act of Britain, the personal information and Electronic Archives Act of Canada, the personal information protection act of Japan, the personal data protection act of Singapore, and the European Union's general data protection regulation (gdpr), which has been familiar in recent years. Looking at the legislation on personal information around the world, the concept and appellation of personal information are different, including data, data, information, archives, etc., which are essentially information about health, identity, family, occupation, behavior and other aspects attached to the subject of natural persons.

Before the promulgation of the civil code, there were provisions of separate laws or departmental laws involving the protection of personal information, such as the network security law, Article 19 of the resident identity card law, Article 29 of the commercial bank law, Article 22 of the medical practitioners law, and articles 14 and 50 of the consumer rights and interests protection law. The civil code adopts the legislation of total score and summary plus enumeration for personal information. In the general part, it generally stipulates to strengthen the protection of personal information, but it does not explain the concept of personal information, In the chapter "privacy and personal information protection" of the personality rights series, it is clearly stipulated that personal information is all kinds of information recorded electronically or in other ways that can identify a specific natural person alone or in combination with other information, including the natural person's name, date of birth, ID number code, biometric information, address, telephone number, e-mail address, whereabouts information, etc.

As a specific personality right, the right of personal information mainly includes: control and possession, self-determination, protection, inquiry, correction, freezing and deletion; At the same time, set the obligations of other civil subjects to protect the personal information of natural persons: any organization and individual who needs to obtain the personal information of others has the obligation to obtain and ensure the information security according to law; It is not allowed to illegally collect, use, process and transmit others' personal information; It is not allowed to illegally trade, provide or disclose others' personal information. The specific system is stipulated in the chapter of "privacy and personal information protection" in the compilation of personality rights. At the same time, after the promulgation of the civil code, laws and regulations such as the personal information protection law, the measures for the exit security evaluation of personal information, and the provisions on the management of information services for mobile Internet applications have been adopted to refine the protection of personal information.

3. Personal rights in marriage and family relations

Article 112 of the Civil Code stipulates: "the personal rights of natural persons arising from marriage and family relations shall be protected by law." Before the promulgation of the civil code, the personal rights related to marriage, family and adoption in China were mainly scattered in separate laws such as the marriage law and the adoption law. In the process of codification, the civil code adopted the same approach as the civil law of the traditional civil law system, taking marriage and family as an independent part. At the same time, it made a declaration of rights in the general part, so that the rights of personality and identity can be fully reflected in the general part, and at the same time, it can command various personal rights in relevant parts. The personal rights in marriage and family relations mainly include spouse rights, parental rights, kinship rights and guardianship rights. These rights are equal internally, and both parties are obligees and obligors of each other; It is an absolute right to the outside world and has the effect of publicity.

（二） Property rights

Article 113 of the Civil Code stipulates that "the property rights of civil subjects shall be equally protected by law". This article emphasizes that the "principle of equality" is an overall provision for the protection of property rights. Property is the sum of material materials or economic interests required by the survival and development of the subject guaranteed by law. In the civil law theory of the continental law system, there are two concepts: property rights in a broad sense and property rights in a narrow sense. Property right in a broad sense refers to the right with property value as the object of right, which is a concept corresponding to personal right. [7] In the narrow sense, property right mainly refers to the right to dominate physical objects.

The concept of property rights in a broad sense is mostly adopted in the academic circles of civil law in China. Property rights mainly have two characteristics: first, the rights and interests embodied in property rights have economic value; Second, property rights can be transferred away from the obligee himself. With the development of social economy and technology, many new property rights are emerging, such as business reputation, business interests, trade secrets, domain name exclusive rights, database exclusive rights. The property rights stipulated in the civil code are an open system. In addition to the traditional inheritance rights, equity and other investment rights, intellectual property rights, real rights and creditor's rights, rights and interests with certain economic value, such as data, network virtual property, are also included in the scope of property rights.

1. Right of inheritance

Article 124 of the Civil Code stipulates: "a natural person has the right of inheritance according to law. A natural person's legitimate private property can be inherited according to law." Although the right of inheritance has the attribute of property rights, it is a right enjoyed based on a certain identity relationship, which has also experienced a long historical development. Until the capitalist era, the property inheritance system began to be independent from the patriarchal inheritance, and finally replaced the identity inheritance system, and the property inheritance system in the modern sense was formally established. [8] Modern inheritance is only the inheritance of the property of the decedent, but does not include the inheritance of position, title and other status.

Therefore, the right of inheritance has the following characteristics: first, the right of inheritance is a right enjoyed by a natural person based on a certain identity relationship, which can only occur between the decedent and his close relatives, generally including spouse, parents, children, brothers and sisters, (maternal) grandparents, (maternal) grandchildren, etc. Second, the right of inheritance is enjoyed free of charge according to law, which can be divided into the right of legal inheritance and the right of testamentary inheritance according to the direct provisions of the law or according to a legally valid will. Whether it is legal succession or testamentary succession, the heir does not need to pay any consideration for acquiring the estate. Third, the right of inheritance is absolute, and no one can infringe, hinder, illegally deprive or restrict it. Fourth, the subject of the right of inheritance is legal property, and the property rights listed and analyzed below can be the subject of the right of inheritance. For more detailed and explicit provisions on the right of inheritance, see the succession part and its judicial interpretation.

2. Equity and other investment interests

Article 125 of the Civil Code stipulates that "civil subjects enjoy equity and other investment rights according to law". The civil law of our country adopts the legislative mode of civil and commercial integration, clearly stipulates that commercial rights and interests are protected in the civil code, integrates the commercial property system into the civil code, reflects the same level of value between the civil property system and the commercial property system, expands the form of China's civil rights system, and plays the function of commercial legislation commanded by the civil code from the perspective of legislative style, It also reflects the inclusiveness of the civil code.

(1) Equity

Equity is the right of shareholders to hold a certain share of the company's capital based on their investment in the company or other legitimate reasons. The main contents of equity include: shareholders' identity rights, such as capital contribution certificates, shareholders' qualifications, attendance at meetings, etc. Although equity as a whole belongs to property rights, the contents include personal rights; Other rights of equity include the right to know, the right to convene, the right to make decisions, the right to supervise, the right to question, the right to benefit, the right to transfer, the right of first refusal and the right to subscribe, etc. Equity can be classified according to different standards: according to the purpose and content of equity exercise, it can be divided into self-interest rights and public welfare rights; According to the nature of equity, it can be divided into inherent rights and non inherent rights; According to the subject of equity exercise, it can be divided into general shareholders' rights and special shareholders' rights. The specific content of equity is more stipulated in the company law and its judicial interpretation.

(2) Other investment rights

Other investment rights refer to the rights enjoyed by civil subjects through various investments, including both equity investment and debt investment. The specific content of these rights is more reflected in the separate commercial laws, including the organizational law, such as the partnership law, the sole proprietorship enterprise law, the foreign investment law, and the enterprise bankruptcy law; It also includes transaction law, such as securities law, Futures Law, insurance law, trust law, etc.

3. Intellectual property

Article 123 of the Civil Code stipulates that "civil subjects enjoy intellectual property rights in accordance with the law". Intellectual property is the exclusive right of civil subjects to creative intellectual achievements according to law. Although intellectual property also has the nature of personal rights, it is mainly manifested as property. Intellectual property has the characteristics of legality, intangibility, exclusivity, timeliness, regionality and so on.

The object of intellectual property is intellectual achievements or intellectual products, which is an intangible property or spiritual wealth, including works, inventions, utility models, designs, trademarks, geographical indications, trade secrets, integrated circuit layout designs, new plant varieties, and other objects prescribed by law. For specific specifications, see copyright law, patent law, trademark law, anyway unfair competition law, regulations on the protection of layout design of integrated circuits, regulations on the protection of new varieties of plants, etc.

4. Real right

The formal use of the concept of real right in law is the Austrian civil code of 1811. Since then, the German civil code has accepted the concept of real right, and takes "real right" as the title of its third part, systematically introducing real rights such as ownership, superficies, usufruct, easement, mortgage, pledge, etc. As far as the legislative evolution of our country is concerned, although the term "real right" is not used in the general principles of civil law, the provisions of "property ownership and land property rights related to property ownership" are made in the first section of Chapter V, which preliminarily constructs the real right system of our civil law; The property law formally uses the concept of property right.

Articles 114 to 117 of the civil code adopt and absorb the contents of articles 2, 5, 42 and 44 of the property law, and stipulate the concept and types of property rights, the object of property rights, that is, the types of things, the legal principle of property rights, and the principled provisions of expropriation and requisition. Real right refers to the right that the obligee has the direct control and exclusive right to a specific thing (i.e. movable or immovable property) according to law, which is divided into ownership, usufructuary right and security real right. For specific norms and systems, see the real right series and its judicial interpretation.

5. Claims

Creditor's rights are an important part of property rights. Different from the static and absolute property relations regulated by the property law, the debt law in the civil law regulates dynamic and relative property relations. After long-term efforts, German jurists and legislators have formed the abstract concept of the relationship of "debt" in their civil code, and brought different civil relationships into the unified system of debt, so that the relationships of different nature such as contract, management without cause, unjust enrichment, tort and so on can become the factors constituting the relationship of debt. Modern civil law stipulates tort as a kind of debt. Influenced by the continental law system, China's civil law has strictly distinguished between creditor's rights and liabilities since the general principles of civil law: in terms of legislative style, Section 2 of Chapter 5 stipulates creditor's rights, and Chapter 6 stipulates civil liabilities.

Articles 118 to 122 of the civil code inherit and integrate articles 84-85 and 92-93 of the general principles of the civil law, stipulate "creditor's rights" in the chapter of "civil rights", and establish a separate chapter of "civil liability". Creditor's rights are the rights of the obligee to request a specific obligor to act or not to act according to the agreement of the parties or the law. According to the reasons for the occurrence of creditor's rights, they are divided into contract, tort, unjust enrichment, management without cause, etc. See contract and tort liability for specific norms and systems.

The general principles of contract compilation and typical contract compilation have made detailed provisions on the contractual debt, while the quasi contract compilation has made specific provisions on the debt of no cause management and unjust enrichment; The tort liability series also makes more detailed provisions on the debt of tort. It should also be noted that considering that the general rules on debt have been basically covered by the sub series of the general principles of contract, and the civil code has no separate series of creditor's rights, the provisions of the general principles of contract not only apply to contractual debt, but also apply to debt without management, unjust enrichment and tort.

6. Virtual property rights

In the Internet era, new technologies represented by cloud computing, big data, 5g, blockchain, metauniverse and other key technologies have had and continue to have a huge impact on modern economic society. The measurement and calculation method of data in human society has been upgraded from K bytes and M bytes to G bytes and t bytes; Various types of online virtual properties created by online games, social platforms and other electronic services on the basis of data have also emerged. At the same time, the ownership and disputes of all kinds of data, Internet accounts, online game equipment, q-coins and other online properties have also become the focus of heated discussion. The definition and legal construction of data and network virtual property rights need to be solved urgently. The provisions of Article 127 of the civil code are new provisions.

During the formulation of the general provisions of the civil law, the first review draft stipulated "network virtual property" under Article 104 "real right" and "data" under Article 108 "intellectual property". In view of the great disputes over the concept, scope of protection, attribute of rights, content of rights and obligations of data and network virtual property, the second draft makes a separate provision for data and network virtual property, and continues to the civil code.

(1) Data

Data refers to all numbers and symbols that can be input into the computer and processed by the computer program. Data not only refers to numbers, but also includes mathematical symbols, letters, words, graphics, images, video, audio, etc. "Data" stipulated in Article 127 of the civil code and "personal information" stipulated in Article 111 are both related and different. Personal information mainly refers to any biological and physical documents, archives and other materials that can identify the identity of a specific natural person. Data refers to the sum of information that can be analyzed, counted and valuable, including both original data and derivative data that have been recorded, stored, edited and calculated. Therefore, data is the manifestation and carrier of information, and information is the connotation of data; Information is loaded on data and explains the meaning of data.

The continuous progress of Internet technology makes the ability of data collection, analysis, mining and storage grow at a geometric speed. As McKinsey, a world-famous information consulting company, said: data has penetrated into every industry and business functional field today, and has become an important production factor. People's mining and application of massive data will herald the arrival of a new wave of productivity growth and consumption surplus. The positioning and chapter structure of the general provisions of the civil code cannot make detailed and systematic provisions on this series of systems, and it is appropriate to make principled and guiding provisions on the protection of data. In addition, the protection of data should be based on the protection of personal information rights and interests of civil subjects. According to the existing separate legal norms, data can be protected according to copyright (compilation works) and trade secrets (technical information and business information) respectively.

(2) Network virtual property

Network virtual property has the characteristics of virtuality, technicality and scarcity. There are broad and narrow differences between network virtual property. The generalized network virtual property refers to the virtual network itself and the property electromagnetic records on the network. It is a new digital property that can measure its value with existing measurement standards. Including e-mail, online accounts, virtual currencies, domain names, online game items and devices. In a narrow sense, network virtual property refers to the virtual property existing in online games, including the level of game account, game currency, game characters, etc. In online games, players invest a lot of time and money to participate, and obtain online virtual property through personal labor such as level training, purchase real property such as game cards, and pay to buy and sell equipment.

With the increasingly close connection between network and life, there are more and more disputes about network virtual property. At present, the disputes of network virtual property in China mainly include the following situations: first, the disputes of network virtual property theft; Second, the network virtual property transaction disputes; Third, the dispute of the ownership confirmation of network virtual property; Fourth, online game service contract disputes. In my opinion, the basis and core of the dispute is to judge the ownership of network virtual property. As for the general principle of attribution, the following opinions can be used for reference: if the data and other properties formed by the user in the process of using the network service are clearly separable from the data platform of the network service provider, have their own independent use value, and can be placed in the user's own computer or other cyberspace by means of export or conversion, the user should have ownership of this part of data, such as e-mail data in e-mail Data in the network hard disk and posts published by individuals in the community such as forums and microblogs; If the data formed by the user's acceptance of the services provided by the network service provider, the network virtual property and the network services provided by the network service provider are difficult to be clearly separated, cannot be imported to the user, or even if the data can be imported to the user but has no use value, the attribution of relevant data and network virtual property to the network service provider is more in line with the current network development practice. Many of these problems need to be further explored in judicial practice.

二、 Operation of civil rights

The above is our list and construction of the right system. The actual operation of civil rights by civil subjects includes the acquisition of civil rights and the exercise of civil rights.

（一） Acquisition of civil rights

The acquisition of civil rights refers to the acquisition of civil rights by civil subjects in accordance with legal methods or legal provisions, which can be divided into original acquisition and subsequent acquisition. Original acquisition refers to that the acquisition of rights does not depend on whether the rights belong to others at the time of acquisition, and that it is obtained for reasons other than the provisions of the law or the will of the original obligee, [16] for example, the ownership and fruits obtained due to the creation of things; Acquisition by succession or acquisition by transmission refers to the succession of rights from the previous party, [17] such as inheritance, assignment of creditor's rights, etc. Article 129 of the civil code is divided into the following four categories according to the conditions directly caused by civil rights:

1. Obtain civil rights based on civil legal acts

Chapter 6 of the general provisions of the civil code specifically stipulates civil legal acts. As we have also introduced in the previous article, the core element of civil legal acts is the expression of will, and the purpose is to set, change and terminate the rights and obligations in civil legal relations. The common situations of establishing civil rights through civil legal acts are sales contracts and loan contracts; Making a will, giving up inheritance, etc., and obtaining civil rights through civil legal acts are mostly acquired by succession.

2. Obtain civil rights based on factual acts

Factual act refers to the act that the civil subject has no intention of causing the occurrence, change or elimination of civil legal relations subjectively, but produces civil consequences in accordance with the provisions of the law. Such as physical labor, intellectual activities, lost and found objects, buried objects, drifting objects, etc.

3. Obtain civil rights based on events prescribed by law

Events stipulated by law refer to objective circumstances that have nothing to do with people's will but can cause changes in civil legal relations according to the law, such as the birth or death of a natural person, natural disasters, accidents, ripeness, time course, etc.

4. Other ways stipulated by law

The law provides for other ways to obtain civil rights, such as the judgment of the people's court, the award of the arbitration institution, the expropriation decision of the people's government, and even the direct provisions of the law. In addition to judicial arbitration and administrative acts, the civil code leaves room for practice and exploration for the future law to confirm other ways of obtaining civil rights.

（二） Exercise of civil rights

1. Free exercise of civil rights

Article 130 of the Civil Code stipulates that "civil subjects shall exercise civil rights according to their own wishes without interference". This article is the embodiment of the "voluntary principle" in the exercise of civil rights: first, civil subjects have the right to exercise civil rights or not to exercise civil rights according to their own wishes; Second, the civil subject has the right to choose the content of exercising civil rights according to its own will; Third, civil subjects have the right to choose the way to exercise civil rights according to law according to their own wishes.

The principle of autonomy of will gives civil subjects freedom, which has many manifestations in the exercise of civil rights: first, from the perspective of departmental laws or different types of rights, there are "freedom of marriage" and "freedom of divorce" in marriage law, "freedom of will" in inheritance law, "freedom of ownership" in property law, "freedom of contract" in contract law, and "freedom of business" in commercial law. Second, from the perspective of exercising rights or rights of different natures, the exercise of domination is usually based on the fact that it governs its right object. The exercise of the right of claim is based on the request for performance of the opposite party. The exercise of the formation right depends on the behavior of the obligee. The exercise of the right of defense refers to the exercise of the right of others to reject their claims, which can be done in writing, orally, or in the judgment or outside the judgment.

2. Unity of rights and obligations

In civil legal relations, civil rights and civil obligations are an inseparable and unified whole that opposes and connects with each other. There are rights, there are obligations, and there are obligations, there are rights: the content of civil rights is expressed through corresponding civil obligations, and the content of civil obligations is limited by corresponding civil rights. In civil legal relations, while enjoying rights, civil subjects bear obligations stipulated by law or agreed by the parties; Without the performance of civil obligations and the assumption of civil liabilities, the protection of civil rights has no practical basis. Therefore, Article 131 of the Civil Code stipulates that "when exercising rights, a civil subject shall perform the obligations stipulated by law and agreed by the parties".

3. Prohibition of abuse of civil rights

(1) Concept origin and related theories

There should be a certain boundary for the civil subject to exercise civil rights. Crossing the boundary may constitute abuse of civil rights or even infringement. To a certain extent, it is necessary to prohibit the boundless exercise of rights. There are different views on what is the principle of prohibiting abuse of Rights: one is the theory of subjective malicious exercise, which believes that rights are the result of the legal distribution of a part of social interests to the obligee, and the exercise of rights will inevitably cause damage to others. However, if the purpose is to damage others, it is an abuse of rights. The second is the violation of the essence of rights, that is, the abuse of power is the obligee's exercise of rights in violation of the essence of the rights conferred by the law (the sociality of rights), so the law does not recognize it as an act of exercising rights.] The third is the theory of transcending boundaries. The abuse of rights means that there must be a certain limit for the exercise of rights. Exercising rights beyond this legitimate limit is the abuse of rights.] Fourth, for the purpose and boundary mixed theory, the abuse of rights refers to the exercise of rights that escape the right, social, economic purpose or the boundary that the society does not allow.

(2) Sources of law and legislative process

From the perspective of comparative law, the civil laws of many countries and regions have provisions on the principle of non abuse of rights, such as Article 226 of the German civil code, paragraph 2 of Article 2 of the Swiss civil code, Article 7 of the Spanish civil code, Article 13 of the Dutch Civil Code, article 7 of the Quebec civil code, and paragraph 3 of Article 1 of the Japanese civil code. Before the compilation of the civil code, China's laws had relevant provisions on the non abuse of rights, such as Article 51 of the constitution, articles 6-7 of the general principles of the civil law, and articles 7-9 of the contract law.

During the compilation of the general principles of civil law, the first instance draft of the draft stipulates in the basic principles of Chapter 1, "civil subjects engaged in civil activities shall abide by the law, shall not violate public order and good customs, and shall not damage the legitimate rights and interests of others." The draft of the second instance amended this article to read, "civil subjects engaged in civil activities shall not violate the law, public order and good customs, or abuse their rights to damage the legitimate rights and interests of others." The third review moved the principle of "no abuse of rights" to this chapter, stipulating that civil subjects shall not abuse civil rights to damage the legitimate rights and interests of others. The general principles of civil law, which was finally adopted, stipulates that civil subjects shall not abuse civil rights to damage national interests, social public interests or the legitimate rights and interests of others. The general provisions of the civil code maintain this provision.

(3) Constitutive requirements and legal consequences

The constitutive elements of abuse of Rights: there must be the existence of rights; The obligee exercises the behavior related to the right in a harmful way; Causing damage to national interests, public interests or the legitimate rights and interests of others; The obligee has subjective fault or malice. The legal consequences of abuse of rights include: the behavior can not produce the corresponding legal effect; The actor should bear civil liability for compensation in case of infringement; If it is feasible to exercise the right but fails to do so for a long time, or although it does not have the conditions to exercise the right, it is not allowed to exercise the right, its rights may be restricted.