侵权法上的法益研究
发布时间：2019-04-09 16:45
【摘要】：现代社会,利益关系错综复杂,人们的权益保护意识提高,新型权益纠纷案件数量增加。毋庸置疑,《侵权责任法》的实施对民事法益的保护有很大的进步意义,但也毋庸讳言,我国民事法益的保护仍然存在诸多缺陷。因此非常有必要对民事法益进行深入研究,明确其内涵,进而通过与域外法的比较,借鉴国外先进的立法理论和司法实践经验,构建具有我国特色的民事法益保护模式。论文在绪论部分首先介绍了研究背景,回顾了我国对民事法益的保护之路,然后通过文献综述对已有的理论研究进行了梳理,明确了研究意义,提出了研究方法。论文共分四个部分,按照提出问题、分析问题和解决问题的逻辑行文。论文第一章指出了我国侵权法上法益保护所面临的困境。这主要体现在三个方面:首先,《侵权责任法》第二条对法益范围的规定较为模糊,间接地忽视了法益的保护;其次,我国对权利和法益采取概括保护,一定程度上限制了行为自由;再次,《侵权责任法》与其他民事法律在法益规定方面存在矛盾。文章认为这些问题的根本原因是民事权利和法益的界定不清楚。论文第二章对民事法益进行了理论界定。为了解决上章提出的问题,第二章进行了法益的概念辨析和特征判断,文章认为法益就是法律主体享有的受法律保护的未上升为权利的利益,法益具有主体资格缺失性,表现形式不明确性以及法律消极承认性。通过与权利的比较,将整个民事利益体系分为权利、法益和自由资源三部分。论文第三章将视野放诸世界,运用比较法学的方法对民事法益进行探索。英美法系的经验主义保护模式,法国的概括保护模式以及德国的层次保护模式,都致力于在权益保护和行为自由之间寻找平衡。这些立法模式都具有较强的借鉴意义,但是在借鉴的过程中应注意在法理层面做到与我国法律中的本土元素相契合。论文第四章回归到我国立法,建立起具有特色的法益保护方式。在法益的界定方面,可以加强指导性案例的重要性,同时在法理上明确法益考量因素。在法益保护方面,借鉴德国建立起层次保护模式,对权利和法益进行区分保护。文章主张不对《侵权责任法》和《民法通则》进行修改,而是充分利用法解释学的方法对现有的法条进行解释。
[Abstract]:In modern society, the relationship of interests is complicated, people's consciousness of protecting rights and interests is improved, and the number of new-type rights and interests disputes is increased. There is no doubt that the implementation of Tort liability Law has great progressive significance to the protection of civil legal interests, but there are still many defects in the protection of civil legal interests in China. Therefore, it is very necessary to study the civil legal interest deeply, to clarify its connotation, and then to construct the civil legal interest protection mode with Chinese characteristics by comparing with the extraterritorial law, drawing lessons from the advanced legislative theory and judicial practical experience of foreign countries. In the introduction part, the paper first introduces the research background, reviews the way to protect the civil legal interests in our country, and then combs the existing theoretical research through literature review, clarifies the significance of the research, and puts forward the research methods. The thesis is divided into four parts. According to the logic of problem-raising, problem-solving and problem-solving, the thesis is divided into four parts. The first chapter points out the dilemma of legal interest protection in the tort law of our country. This is mainly reflected in three aspects: firstly, Article 2 of Tort liability Law is vague about the scope of legal interest, and indirectly neglects the protection of legal interest; Secondly, the general protection of rights and legal interests in China limits the freedom of conduct to a certain extent; thirdly, the Tort liability Law and other civil laws in the legal interests of the provisions of contradictions. The article thinks that the root cause of these problems is that the definition of civil rights and legal interests is not clear. The second chapter defines the civil legal interest in theory. In order to solve the problems raised in the previous chapter, the second chapter analyzes the concept of legal interest and judges its characteristics. The article thinks that legal interest is the benefit that the legal subject has not risen to the right protected by the law, and the legal interest has the character of missing the subject's qualification. The form of expression is unclear and the negative recognition of the law. Through the comparison with rights, the whole civil interest system is divided into three parts: rights, legal interests and free resources. In the third chapter, we use comparative law to explore the interests of civil law. The empirical protection model in Anglo-American law system, the generalized protection model in France and the hierarchical protection model in Germany are all committed to finding a balance between the protection of rights and interests and the freedom of conduct. These legislative models have strong reference significance, but in the process of drawing lessons, we should pay attention to match with the native elements in the law of our country at the legal level. The fourth chapter returns to our country legislation, establishes the characteristic legal interest protection way. In the definition of legal interests, the importance of guiding cases can be strengthened, and the legal interests consideration factors can be clearly defined in legal theory. In the aspect of legal interest protection, the right and legal interest should be separately protected by establishing a hierarchical protection model for reference from Germany. This paper argues that the Tort liability Law and the General principles of Civil Law should not be amended, but should make full use of the method of legal hermeneutics to interpret the existing articles of law.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
本文编号：2455349
[Abstract]:In modern society, the relationship of interests is complicated, people's consciousness of protecting rights and interests is improved, and the number of new-type rights and interests disputes is increased. There is no doubt that the implementation of Tort liability Law has great progressive significance to the protection of civil legal interests, but there are still many defects in the protection of civil legal interests in China. Therefore, it is very necessary to study the civil legal interest deeply, to clarify its connotation, and then to construct the civil legal interest protection mode with Chinese characteristics by comparing with the extraterritorial law, drawing lessons from the advanced legislative theory and judicial practical experience of foreign countries. In the introduction part, the paper first introduces the research background, reviews the way to protect the civil legal interests in our country, and then combs the existing theoretical research through literature review, clarifies the significance of the research, and puts forward the research methods. The thesis is divided into four parts. According to the logic of problem-raising, problem-solving and problem-solving, the thesis is divided into four parts. The first chapter points out the dilemma of legal interest protection in the tort law of our country. This is mainly reflected in three aspects: firstly, Article 2 of Tort liability Law is vague about the scope of legal interest, and indirectly neglects the protection of legal interest; Secondly, the general protection of rights and legal interests in China limits the freedom of conduct to a certain extent; thirdly, the Tort liability Law and other civil laws in the legal interests of the provisions of contradictions. The article thinks that the root cause of these problems is that the definition of civil rights and legal interests is not clear. The second chapter defines the civil legal interest in theory. In order to solve the problems raised in the previous chapter, the second chapter analyzes the concept of legal interest and judges its characteristics. The article thinks that legal interest is the benefit that the legal subject has not risen to the right protected by the law, and the legal interest has the character of missing the subject's qualification. The form of expression is unclear and the negative recognition of the law. Through the comparison with rights, the whole civil interest system is divided into three parts: rights, legal interests and free resources. In the third chapter, we use comparative law to explore the interests of civil law. The empirical protection model in Anglo-American law system, the generalized protection model in France and the hierarchical protection model in Germany are all committed to finding a balance between the protection of rights and interests and the freedom of conduct. These legislative models have strong reference significance, but in the process of drawing lessons, we should pay attention to match with the native elements in the law of our country at the legal level. The fourth chapter returns to our country legislation, establishes the characteristic legal interest protection way. In the definition of legal interests, the importance of guiding cases can be strengthened, and the legal interests consideration factors can be clearly defined in legal theory. In the aspect of legal interest protection, the right and legal interest should be separately protected by establishing a hierarchical protection model for reference from Germany. This paper argues that the Tort liability Law and the General principles of Civil Law should not be amended, but should make full use of the method of legal hermeneutics to interpret the existing articles of law.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923
【参考文献】
相关期刊论文 前1条
1 王成;;侵权之“权”的认定与民事主体利益的规范途径——兼论《侵权责任法》的一般条款[J];清华法学;2011年02期
，本文编号：2455349
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2455349.html
