Application Of Judicial Adjudication Methods Of Emerging Rights From The Perspective Of Interest Measurement

In our civil field,the filing registration system and the judge can not refuse the principle of judgment for the new rights to enter the civil judicial process unimpeded channels.The emerging rights cases in judicial practice are mostly related to the interests of personality.Therefore,the research object of this thesis is limited to the emerging personality rights in the civil judicial process.The emerging rights lack explicit legal provisions,and judges often cannot find the corresponding premise to support the reasoning when trying related cases.Therefore,the phenomenon of non-classification of judgment in such cases is serious,which is not conducive to judicial fairness and the maintenance of the interests of the parties.The reasons for the above predicament lie in:(1)the contradiction between the stability of legislation and the flexibility of new rights;(2)There is a contradiction between the limitation of legislator’s ability and the infinity of emerging rights;(3)There is a contradiction between the judge shall not reject the judgment and the lag of legal norms.The second paragraph of Article 990 of the Civil Code establishes the "dual protection of rights and interests" of the right of personality.In addition to protecting the legal right of personality,it also provides corresponding protection for other personality interests,which provides legal norms for the trial of emerging rights cases and can be used as a major premise in judicial procedures.At the same time,it also provides institutional norms for the application of interest measurement.The essence of emerging rights disputes is emerging interest claims disputes.We should make an in-depth analysis of emerging rights from the perspective of interests to judge whether emerging interest claims should be protected.Interest measurement aims at achieving compromise and consideration of the interests of all parties,seeking to maximize the overall interests and minimize losses.It can be used as a judgment tool in emerging rights cases,helping to realize substantive justice of judgment results,weighing the interests of all parties and making up for the rigidity of traditional judicial inclusion mode.It is necessary to standardize the application of interest measure in the judgment of emerging rights cases.The applicable principles of interest measurement in new rights cases mainly include the principle of measuring according to law,the principle of taking account of interests and the principle of proportion.The specific legal methods to be applied should take the textual interpretation as the basic method,the purpose interpretation as the advanced method,the system interpretation as the overall planning method,and the argumentation as the optimization method.In the specific application procedure,it is necessary to judge whether the emerging rights proposed by the parties can be classified as legal rights: when the emerging rights can be classified as legal rights,the judge can use the syllogism to directly try the case;When the ownership of rights cannot be found,it is necessary to measure the legitimacy of the emerging interests embodied in the emerging rights from five aspects:(1)To measure whether the emerging interests are directly related to the interest subjects;(2)Measuring whether emerging interests can be accommodated by the existing legal system;(3)Whether to measure the legitimacy of emerging interests;(4)Measure the proportionate cost of safeguarding emerging interests.As the application of interest measurement depends on the subjective initiative of judges to a certain extent,it has a certain wanton nature,so it needs to be properly regulated to ensure the objectivity of the process of reasoning and the fairness of judicial judgment.Its normative methods mainly include:(1)pay attention to the authority of the enactment law;(2)Focus on improving the quality and professional skills of judges;(3)Express the interest measure in the judgment reasoning;(4)Give full consideration to the future development of society;(5)Clarify the applicable situation and consideration factors of interest measurement.