Research On The Differentiated Protection Of Rights And Interests In Civil Tort

The idea of differentiated protection of rights and interests originated from Germany,which means that different types and nature of rights and interests should be differentiated and given different degrees of protection in tort law.This degree of difference mainly means that in the general tort liability,different restrictions should be taken on the identification of the constituent elements of the liability.Its main purpose is to avoid the spread of liability and balance the protection of rights and interests and freedom of action.Article 998 of the civil code of our country embodies the idea of differentiated protection of rights and interests.In the legislation,different ways of liability determination are adopted for infringement of different types of personality rights and interests.However,article 1165(1)of the civil code does not distinguish different types of rights and interests and stipulate different elements of liability in the determination of general tort liability.However,in judicial practice,the identification of general tort liability has been carrying out the idea of differentiated protection of rights and interests,which applies different elements of liability to absolute right,relative right and other civil interests.However,under such a differentiated mode,the standard of distinction and the specific method of liability composition still need to be discussed,which leads to different views and arguments in academic circles.Based on a comprehensive review of the status quo of differentiated protection of rights and interests at home and abroad,this paper holds that it is necessary and feasible to distinguish different types of civil rights and interests in the general provisions of tort liability in China.The fundamental reason why the protection should be differentiated is that in the face of different types of rights and interests with different levels of value and degree of publicity,the actors have different degrees of identification of their own behavior freedom boundary,so the predictability and avoidability of the victim’s damage are not the same.If they are given the same requirements of accountability,the actor’s freedom of action will be excessively prevented,which is the basic reason for the differentiated protection of rights and interests It has become the fundamental reason for the institutional consensus of all countries.In addition,in the face of "civil rights" which is a broad scope of general tort liability protection,the internal distinction and classification can not only maintain the stability of the law,improve the efficiency of judicial adjudication,but also help the judge reduce the burden of argument,which is an inevitable means to enhance the standardized protection of civil interests outside the right.China maintains the openness of the object of general tort liability in legislation,thus avoiding the defects of positivism in German statute law,and transferring the responsibility of differentiated protection of rights and interests to flexible judicature.Therefore,the current problem is not whether to carry out differentiated protection,but how to use appropriate legal technology to implement this good idea.At present,more and more scholars have noticed that the distinction between the "right" stipulated by law and the "absolute right" needs to be discussed.It is only a formal distinction,and does not touch the fundamental purpose of the protection of rights and interests.By referring to the three doctrinal standards of the German theory of differentiated protection of rights and interests,namely "attribution efficiency","exclusion efficiency","openness of social typical" and the value rank arrangement of differentiated protection of rights and interests in the European Tort principles,scholars have put forward the method of distinguishing rights and interests by substantive standards,so as to carry out a thorough differentiated protection across rights and interests.This paper agrees with this,and thinks that the publicity of social typical already includes the attribution efficiency and exclusion efficiency,so we should distinguish the rights and interests according to the publicity of social typical and the value rank of the protected rights and interests.According to Article 998 of the civil code,we should introduce the dynamic system theory,combine the elements with various factors,and consider whether different types and nature of civil rights constitute tort liability flexibly.Specifically,the higher the openness of social models and the higher the value rank,the rights and interests should be protected in principle,and the responsibility can be constituted if they meet the constitutive requirements and do not harm the public interest;the rights and interests with low openness of social models but high value rank,mainly including the personality rights other than the material personality rights,should also be protected in principle,according to Article 998 of the civil code The rights and interests with low publicity and low value rank of typical society,mainly including creditor’s rights and pure economic losses,adopt the attitude of exception protection,and conduct comprehensive consideration and identification in the case of interest measurement according to the constituent elements of tort liability and the factors that should be considered.