功能性特征解释之冲突与合理化路径分析
发布时间：2018-10-12 19:14
【摘要】：围绕功能性特征的解释问题,司法和行政规则的直接分歧引发诸多关注。仅止于将两种规则予以字面一致的研究,忽视司法与行政体系实质差异及最终目标上的协调,对实践中的难点和亟需解决的问题并无裨益。而侵权判断中特征比对之复杂性、权利要求解释中的多种考量因素及思维过程之不确定性,对具体案件判断过程及结论的影响,远甚于前述两个不同规则表面上的矛盾。对于二元体系下法律适用割裂所造成的权利要求解释之冲突,应基于侵权判断的实践层面寻求恰当的解决之道。只有个案实践中予以精细化分析,才能在拒绝保护或予以无效这两种极端解决方案之间寻找合理化解释路径。
[Abstract]:The direct divergence of judicial and administrative rules arouses many concerns about the interpretation of functional features. It is of no benefit to study the two rules literally and ignore the essential differences between judicial and administrative systems and the coordination of the final goal. It is of no benefit to the difficulties in practice and the problems that need to be solved. The complexity of feature comparison in tort judgment, the uncertainty of various considerations and thinking process in the interpretation of claims, and the impact on the judgment process and conclusion of specific cases are far more than the apparent contradictions between the two different rules mentioned above. For the conflict of claim interpretation caused by the separation of legal application in dualistic system, the appropriate solution should be found based on the practical aspect of tort judgment. Only through detailed analysis in case practice can we find a rational explanation path between the two extreme solutions of refusing to protect or failing to be protected.
【作者单位】： 华东政法大学;
【分类号】：D923.42
，
本文编号：2267294
[Abstract]:The direct divergence of judicial and administrative rules arouses many concerns about the interpretation of functional features. It is of no benefit to study the two rules literally and ignore the essential differences between judicial and administrative systems and the coordination of the final goal. It is of no benefit to the difficulties in practice and the problems that need to be solved. The complexity of feature comparison in tort judgment, the uncertainty of various considerations and thinking process in the interpretation of claims, and the impact on the judgment process and conclusion of specific cases are far more than the apparent contradictions between the two different rules mentioned above. For the conflict of claim interpretation caused by the separation of legal application in dualistic system, the appropriate solution should be found based on the practical aspect of tort judgment. Only through detailed analysis in case practice can we find a rational explanation path between the two extreme solutions of refusing to protect or failing to be protected.
【作者单位】： 华东政法大学;
【分类号】：D923.42
，
本文编号：2267294
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