The Research Of Civil Legal Interest

Legal protection of civil legal interest is very important in legislation and justice. By taking into account of both theoretical foundation and legislative and interpretation theory, and integrating value analysis, technical analysis and comparative analysis, this dissertation gives an interpretation of the content related to civil legal interest in current Tort Liability Law, and proposes a suggestion for distinguishing legal interest from civil right based on the experience of other countries combined with the analysis of the legal environment and conditions of our country. Apart from the introduction and conclusion, this dissertation is divided into five chapters.The introduction describes the reason and significance of choosing this topic, and summarizes the present research and trends as well as the approaches and methods. Faced with conflicts between the growing atypical tort law cases and difficulties in finding the appropriate legal provision, the theory of rights is unable to distinguish and protect the interests of some emerging articles. This paper discusses the possibility of legal interest protection beyond the theory of rights which dominates the judicial practice, and explores the principle of legal protection of civil interest. Through studying the different types of civil interest and necessity of legal protection, and comparing the methods of domestic and foreign legal protection of civil interest, this paper focuses on predicting the scope and limit of legal interest, improving the fallback provision concerning the protection of legal interest in Tort Liability Law, and exploiting various methods, such as interpretation theory in practice to distinguish and select the way of protection.Chapter 1 examines the concepts of civil legal interest. Beginning with the analysis of theoretical foundations of civil legal interest, this chapter explains the important status of interest in law. The essence of interest is recognized legitimately and receives protection as "right". With the extension of the scope of legal protection, the concept of legal interest in criminal jurisprudence drifts along, providing a theoretical reference for civil law. In judicial practice, the atypical cases of infringement increase with years, whereas there is no common understanding of how to protect these atypical legal interest among judges, neither is a unified referee. In the definition of civil legal interest, there is a debate focusing on general civil legal interest and special civil legal interest. General civil legal interest refers to all the interest protected by civil law. Special civil legal interest only concerns the interest that is not covered by the system of rights but still protected by civil law. Comparison of the relations between civil legal interest and rights to interest and the interpretation of their concepts favors the definition of special civil legal interest. After outlining the distinction between legal interest and basis of obligatory right, and comparative analysis of the relationship between civil legal interest, contract interest, tort damage, groundless management interest and unjustified interest, the paper separates interest from obligatory right. In addition to the natural property, civil legal interest has characteristics distinguish itself from right in the aspects of identification, ownership, protection, and subjects. Civil legal interest is considered to be a secondary right from as the status, process and type is concerned.Chapter 2 discusses the types of civil legal interest. On the grounds of different characteristics of elements of interest, civil legal interest is classified into three types, personal-, property- and mixed-type. Based on whether it should be ascended to civil right, whether there exists a subject of civil legal interest, or on different legal carriers or characteristics, the civil legal interest can be classified differently. The personal-type includes personality-type and identity-type. The personality-type of civil legal interest is more general compared to the specific human right. Legal interest in conventional personal right system has been considered as human right, however its content is more flexible, therefore it is not equal to the general human right, but should be referred to as personality-type of civil legal interest. Identity-type of civil legal interest relies on specific family relationship, for this reason there are few disputes in practice. Besides the identity-type of interest protected by the right of spouse, parent and relatives, other identity interest should also be protected by law. Meanwhile, the identity interest of the deceased individual or fetus should be assigned to the relatives of the deceased in practical terms, therefore it should also be classified as identity-type of civil legal interest. The property-type of civil legal interest includes legal interest of property, obligation and business. The concept of "possession" in property-type of civil legal interest does not imply ownership, neither belongings of right. It should be classified into legal interest since it does not carry the general characteristics of property from the point of cause, publicity, protection or effectiveness. Buyer's expect interest is an incomplete legal interest under the possession of property. Virtual goods which is not defined in property law, is considered as interest herewith. Legal interest of obligation mainly includes natural obligation and pure economic loss, both of which do not belong to right in essence. Legal interest of business mainly includes the right of operation and interest of franchise operation. The former refers to the interest of fair competition in business operation, and the latter refers to the interest of exclusive practice because of possession of exclusive trademark, patent or special technology. The mixed-type of civil legal interest includes the interest of intellectual property, commercialization and newborn infants. These three interests have characteristics of personal-type and property-type, therefore they are classified into mixed-type of civil legal interest.Chapter 3 explains the necessity of civil legal interest protection. Civil law belongs to incomplete legislation. The hysteresis and rigidity of legislation contrasting the dynamics and openness of the social life, causes incomplete legislation due to bounded rationality. Statutory law does not cover all aspects of judicial cases, leaving some legal interests out of protection. The rights protected by civil law are relatively rigid and exclusive. Conflicts between the system of civil rights and the growth of interest require separation of obligatory rights from actual rights since the system of civil rights does not include all the legal interests. Therefore, it is necessary to break the boundary of the system of rights and reconstruct the space for the growth of interest. The limitation of statutory law and rigidity of the system of rights should be properly adjusted so as to include the protection of obligatory rights.Chapter 4 studies the scope of civil legal interest protection. Two models exist in practice, equal protection of interest and discriminative protection of interest. There are three types of discriminative protection of interest, including equal protection of interest in contract law, indiscriminative protection of interest in the Civil law, and protection defined by the general terms of tort law in the "French Civil Code". The latter refers to protection under indiscriminative paradigm according to consensus, precedent or discretion. It overcomes the congenital defects caused by incomplete protection of statutory law. Based on the consideration of social welfare and compliance with the value of interest sequence, countries or regions in the Civil law system, represented by Germany, use discriminative protection in tort law to determine the appropriate protection and prevent excessive expansion of tort liability. In fault liability, the distinction between the protection of legal interest and rights is outlined by definition of illegality and deliberate violation of public order, improving the protection of legal interest. This chapter also discusses the content of legal protection and public order, and analyzes whether public law provisions, administrative penalties and customary law could be used as the basis for legal protection. In the meantime, the extent of violation of public order to which the execution of civil legal interest protection would be triggered is also investigated. Lastly, the limit of civil legal interest protection is mentioned. Examples of general personal right, pure economic loss and the interest of the deceased illustrate the protection scope of physical-type and property-type of civil legal interest and the time limits.Chapter 5 examines the adjustment in Tort Liability Law for protection of civil legal interest. Firstly, the purpose of formulating Tort Liability Law is investigated. This law protects the legitimate rights, prevents and punishes tortious conduct. It also mitigates the liability of the tortfeasor and imposes liability within necessary limit based on the equal protection of civil rights. Although in some cases of bona fide acquisition or pure economic loss, the civil legal interest achieved higher protection than the civil right protection, civil right still precedes civil interest, therefore protection of civil legal interest should adopt weak protection measures. This chapter proposes a model of statutory law, "general provisions plus special types of legal interest" to restrict the general terms of tort liability law. Using Article 823 and 826 in the "German Civil Code" as reference, the result caused by unlawful act or intentional violation of public order could be used as the basis for legal interest protection. And summarization and enumeration of all types of legal civil interest should be included in judicial interpretation. Finally, this chapter investigates supplementary protection of tort liability law. The power of judicial discretion the judge has permits measurement of interest, filling of the gaps and legal reasoning by analogy in order to make rational judgment in some circumstance beyond the principles of statutory law and requires compensation for the damage.