Research On Civil Legal Interest

Under the right stand dialogue, right is prominent in law,which are designed almost with right as its sole object. Specifically speaking, under the continental legal system, the judicial actions are followed the logical operation process named'from fact to law'. Facing the interest clash, judges should firstly consider the question about what is the legal regulation, namely carrying on so-called finding laws activity first, and then making his judgment based on the relevant facts. If we put this model into the civil law circumstance, we will find the most important means to resolve the struggle among various interest is regarding that kind of interest as right, this is to say use right, rather than interest to cut the final blade. By doing above can we make the interest protected by law be specific and safeguarded.Just when we are costumed to using the right to get access to problem, to resolve questions, we find actually there are no any correspondence between those interest and rights, which results in many questions both in legal theory and in legal practice. Owning to its dominance position law, right is the only thing people tend to think about in thinking. Comparing to say, the status of legal interest is pretty pity. As far as the author's concern, the fundamental status of legal interest determine the necessity of related research. In other words, we should begin concerning study and try to form some theoretical system.Chapter I mainly concern the meaning set up of civic legal interest. In the first section, the author puts forward the proposal meaning of legal interest and clarifies its core poison in legal theory. In the following section, the author interprets legal interest in the perspective of semantic analysis, which means we should adopts its narrowest meaning. Put it in another way, legal interest should be regarded as those rights protected by law indirectly under the principals of constitution, and we should admit that there exists some right beyond the reach of law. At the same time, when we identify the legal interest we want to protect by law, we should consider some prerequisites such as the character of pre substantiality, the character of formal indeterminism and the character of protecting the inferior, etc. In the third section, the author holds that civil interest system should including three levels: right, legal interest and free interest beyond legal stipulations. There exist transitional relationships among right, legal interest and interest.Chapter II explores the reason for the born of civic legal interest from the point of jurisprudence. The author argues that the decisional causation for legal interest in civil law is the limited reasoning of human being. Reasoning is one character determining people is people, rather than animal. But on the other hand, peoples'reasoning ability is limit and not absolute. The imperfection has two marks on the civil law. Firstly, legislators are likely to omit some important rights when do legislation. Failing to do so not because those rights are not important, but for their negligence. Since it is still need to protect those rights, so there born the words of legal interest. Secondly, there are some contradiction between the stipulation of civil rights and the growing of legal interest. The civil regulation is highly abstract, which means it highlights the legal system and determinacy, on the other hand, it don't care the development of legal interest. Because after mature, newly developed interest are hard to be merged into legal rights system, and then have to find some other ways of living, such as legal interest. Chapter III focus on the typical research on legal interest in civil law. Civil legal interest can be classified as three kinds: personality legal interest, property legal interest and mixed legal interest.The first section is personality legal interest research. The right of personality in right of the person is always be held as one kind of right, but if we look more closer, we will find that it is hardly to be regarded like this, because of its ambiguity, its opening, and other related characteristics. On the other hand, we can not find so many legal stipulations about general right of personality in various legislation. So maybe we should think it is belonged to legal interest.The second section is property legal interest research. There are arguments from fact and rights to the character of possession. But if we judge from the causes, the ways of making public, the means of legal protection and other perspective, it is scarcely to be regarded as rights, but legal interest. Also in this chapter, the author classifies the natural obligation and put forwards that what the natural obligation only means the obligation out of the protection timing limitation. And from this judgment, it can be holds as some legal interest. But it is reversible, which means we can change it into rights if the creditor wavier his or her right. Pure economic loss can be found both in tort and in contract law, so their belonging is suspicious. And the author argues it also can be holds as one kind of legal interest.The third section is mixed legal interest research. Legal interests of fetus are mixed because of its especially subjective position. Fetus legal interests including personality interests and property interests.Chapter IV talks about the protection of civic legal interest. The first section is the indirect protection of legal interest. And there are three ways to protect legal interest: by adopting the custom, by using analogy from civil rules, by calling for the general principles of civil law. The second section is the direct protection of legal interest. The general clause of tort is the basis of pledge right. The third section is some thinks about the legislation of legal interest. Firstly, the attitude to the protection of civil legal interest among the various protective means should be stated clearly first in the legislation purpose clause. Secondly, the author articulated with explicit explanation the general clause of tort in the coming civil law of China.