摘要
人格权是人权的重要内容,是一种框架性的权利。人格权的存在不以法律具体规定为前提,立法也无法为人格权的外延划定明确的界限。此种法律属性决定了人格权的类型化主要依靠司法机制,即依靠一个个具体的司法案例完成经验类型的积累。以最高人民法院指导性案例99号为核心的司法案例群为英雄烈士名誉荣誉权益的类型化做出了表率,但也有随着时代发展需进一步推进之处。未来人格权的发展应当坚持以典型司法裁判作为类型化的常态路径,并重点关注人格权益的新内容、新要素;在类型化方法上,应当通过个案中的法益衡量方法对具体人格权益进行衡量证成,而当个案汇聚成案例群后,应当适用案例群方法提取人格权的类型化要素,进而提炼可普遍适用的裁判规则。
Personality right is an essential element of human rights and a fundamental framework right(Rahmenrecht).Legal provisions are not the precondition for personality rights to be recognized,and the legislation cannot draw clear boundaries for the extension of personality rights.It is impossible to thoroughly and clearly depict what living conditions are accommodated in the scope of personality rights protection.The extension of personality rights is indefinite,and the system of personality rights always remains open to life facts.This legal attribute determines that the development of personality rights category mainly rests on judicial mechanisms and specific judicial cases and primarily accumulates from practices.Upon the demand of categorizing personality rights,theoretical studies start from the provisions of personality rights in the Civil Code to explore the content of rights,interests,and the space for interpretation and application.However,there is no specific focus on judicial and leading cases and no discussion of the infringing patterns,and protection paths of personality rights and interests.Even the study of interpretation theory focuses on logical deduction rather than further researches on judicial practice.There are abundant resources of local cases in judicial practice,which are rich in judicial wisdom and worthy of analysis and study by personality rights research.For instance,the specific cluster of cases with leading case No.99,explores the elements of infringing the martyrs'right of fame and interests,which are different from the general personality interests of the deceased,and pushes forward the legalization of the martyrs'personality rights and interests in the Civil Code.Nevertheless,there are still some inadequacies in current practice,which are highlighted as follows:too much emphasis on martyr's fame and neglect of the needs of categorizing other personality rights and interests,too much emphasis on moral rhetoric and neglect of the balance among legal interests behind.Therefore,it is urgent for the path and method of categorizing personality rights to be further improved.In a general sense,categorizing personality rights needs to study the specific cluster of cases with a leading case,from which the typical features could be summarized,and alternative constitutive elements or adjudication rules could be drafted and proposed.The categorizing can only be completed with the specific cluster of cases as the foundation,while the cluster can hardly be formed without the typical cases with guiding significance.If the judiciary concentrates on issuing leading cases for just one particular interest,it will put aside the need for categorizing other personality rights and interests.Besides,the scope of protection of personality rights needs to be determined by weighing legal interests,and the legitimacy of the rights and interests will be questioned without the process of weighing them.Personality right as a fundamental framework right(Rahmenrecht)is inseparable from the judgment of the two violations:violation by the conduct–the violation by the result.The infringement of personality interests does not mark the illegality of the conduct so it needs to be judged by weighing conflicting interests.The infringement is unlawful only when the victim's interest in protection exceeds the proportion of the infringer's legal interests.Therefore,the weighing different interests is quite essential.The future development of personality rights needs more exploration of the path and method of categorization.On the path,typical judicial decisions should be guaranteed as the regular mechanism for categorizing personality rights,focusing on the new contents and elements of personality rights and interests,and actively interpreting the general personality rights.On the method,weighing legal interests in individual cases should be applied to determine the damage of rights and interests by considering the density of infringement,the degree of certainty of empirical premises and abstract gravity,and ultimately to complete the process of weighing specific personality rights and interests;when the cases weighed by the proposed method converge into a specific cluster,the case cluster method should be applied to extract the typical elements in them.By comparing similarities among cases,the consensus of legal evaluation on specific issues could be gradually reached,which will facilitate the development of generally applicable rules of decision.
作者
乌日力嘎
Wuriliga(Shandong University;Heidelberg University)
出处
《人权法学》
2023年第3期129-148,161,162,共22页
Journal of Human Rights Law
基金
国家社会科学基金项目“裁判文书援引社会主义核心价值观说理的路径与方法”(21BFX164)
国家留学基金委“国家建设高水平大学公派研究生项目”(CSC202106220116)
山东大学马克思主义人权理论与中国特色社会主义法治研究项目(61040062914001)。
关键词
人格权
类型化
法益衡量
案例群
指导性案例
personality rights
categorizing
weighing legal interests
the cluster of cases
leading case
