The Guarantee And Restriction On Freedom Of Naming As A Fundamental Right

The right to decide the name and the right to change the name under the name registration system can be collectively referred to as the freedom of naming of citizens,which originates from the dignity of the person in the Constitution and has the attributes of basic rights.The freedom of naming is the basis and premise of the right to name in private law,and it also plays a different function from the right to name in private law.The purpose of naming freedom is to ensure that citizens can give up inappropriate names and choose their favorite names,which are respected and recognized by the state,and should be stipulated and guaranteed by the constitution and public law.However,the current civil law of our country stipulates the right to decide and change the name,which is a mistake to assume the function of public law,which reflects the misunderstanding of the attribute of naming freedom.This mistake led the practitioners to mistake "public order and good customs" instead of "public interest" as the general principle to limit the freedom of naming.Fortunately,"public interest" and "public order and good customs" have similar meanings in the field of name rights.Public order points to the public interest at the material level,that is,the cost of household registration management and the stability of social relations.Good customs points to the public interest at the spiritual level,that is,the moral culture of names.Restricting naming freedom with "public order and good customs" is just a wrong path,but the conclusion is the same as applying the principle of "public interest".At present,legislative interpretation in China strictly excludes the choice of the third surname,but the third surname does not affect public order.Although it can be determined that the current kindness and customs exclude the third surname,we should pay attention to the real-time changes of the kindness and customs,the law should also respond to changing public opinion.In addition,the current law should also allow the choice of third surnames under reasonable grounds;Due to the conservative attitude of departmental regulations,it is far more difficult for adults to change their names than for minors.The normative documents of the provinces require that the name can be changed only when inconvenience occurs,and the conditions are very strict.Normative documents everywhere also reject name-changing applications from citizens who do not give reasons.The combination of the two reverses the law’s open-minded stance on naming freedom,greatly restricts citizens’ freedom to change their name,and is suspected of being unconstitutional.In addition,the renaming conditions stipulated by the provinces are not comprehensive and inconsistent,which seriously affects the identity of the basic rights of citizens in a country.The adoption of informatized and networked household registration management systems and biometric identification technology has reduced the risk of adults changing their names.In order to protect adults’ freedom to change their names,the outdated conservative position should be revised and the court’s review function of normative documents should be brought into play.The identity of rights should be guaranteed by raising the legislative level to unify the conditions for changing the name.The ideal solution is to adopt a negative list system of renaming conditions.The realistic solution is to comprehensively stipulate the situation of renaming,and leniently recognize the subjective emotional harm caused by the name;The current number of name changes is too small,and the number of name changes should be increased according to the reason for the name change and the age of the applicant.A cooling-off period system for name change should be established,and citizens should be reminded to exercise their right to change carefully on the premise of safeguarding the freedom of naming;Laws and departmental regulations only restrict persons who are serving sentences from changing their names,but regulatory documents in some provinces illegally add clauses to restrict renaming of released persons.A publicity system for name changes should be established to balance the rights of citizens,including those released from prison,to change their names and the public’s right to know,so as to ensure the transaction safety and physical safety of relevant personnel.