| The scope of legal interest which is protected by tort law is the problems about which kinds of legal interest are protected by tort law. This is the basic problem of tort law. In this article, the writer researches these questions: the intension of legal interest, the relationship between legal interest and right, the theoretical foundation of legal interest which should be protected by tort law, how to determine the limitation of the legal interest which can be protected by tort law, the types of legal interest which are protected by tort law, which legislation mode we choose to protect the legal interest. As the differences of legal thoughts and legal traditions between the two main legal systems, the common law and civil law have different understandings about the scopes of rights and interest which are protected by tort law. In the tradition of case law and the empirical thinking mode, Anglo-American law system creates the specific types of torts in the case law and protects the rights and legal interest equally. As the disadvantages of codification and right classification in civil law system, civil law system emphasizes the protection of rights, and ignores the protection of legal interest. So it is necessary to breakthrough the limitation of rights, enlarge the protection scope of tort law, and stipulate the types of legal interest protected by the tort law explicitly and make some limitation reasonably and effectively. The more importance is that we must choose the scientific and suitable tort law legislation mode for our country and use the method that comprehensive general clause combined with comprehensive enumeration, which can realize the objective of the protection of legal interest.This text is divided into five parts altogether. The foreword analyses the significance of this article and makes some limitation about the research scopes. First of all, the functions of tort law are achieving the balance between the protection of rights and legal interest and the liberal actions through the bare of tort responsibility. Researching on the scope of the rights and legal interests protected by tort law is one way to realize the function above. Second, researching on the right and legal interest scope protected by tort law can overcome the deficiency of statute law and the defects of right classification, and can protect the legitimate civil rights and interest more perfect. At last, researching on the right and legal interest scope protected by tort law is helpful to define the conception of infringement theoretically, and it can do some guidance for the infringement adjudication. This article is analyses in the macroscopic angle, so the specific questions such as constitutive requirements of infringement liability for practical legal interest types and the compensation range is not concluded in this article, thought these questions are importance for practical cases.The first part mainly concerns the meaning of civil legal interest. The essence of civil right is that civil right is the civil interest protected by civil law; interest is the content of civil right and protected by law is the external form. Legal interest is the conception between interest and right, and it is the civil interest accord with the value judgment in the society except civil right. Civil right and legal interest all come from the life interest, their essence is the same. Just because of the same interest essence, they can be protected by tort law. But the protective degree of right is higher than that of legal interest. The distinction between right and legal interest is not absolute. As the development of society, some legal interest can become right, and some right can become legal interest and even become life interest that can not be protected by civil law.The second part of this text is the comparison analysis on the protection of legal interest in different countries. After the comparison analysis, the writer holds that in the influence of modern society, the increasing of right consciousness and the disadvantages of right classification in civil law system, the countries in the world all enlarge the protection scope of tort law through case law or judicial interpretation. There are two methods of enlargement, one is enlarge the interpretation of right, protect legal interest in the name of right. The other way is to stipulate the type of legal interest protected by tort law through case law or judicial interpretation. The writer believes that we must choose the second method. The third part analyses the factors we must consider when we define the scope of legal interest protected by tort law. The protection scope of tort law has been enlarged, and this tradition can enhance the protection of people's civil right and interest to some extent, but if the protection scope is too extensive, the activity freedom will be limited, and it will cause a large number of lawsuits and bring unfavorable influence to the creativity and order of the society. So it is necessary to make some reasonable limitation: first, the legal interest protected by torts law must be universal reasonable and can be remedy by tort law. Second, the legal interest protected by tort law must be expectable. Third, when we define the legal interest protected by tort law in the practical case, the judge must consider various kinds of interest comprehensively and the need of social and economic policies. At last, the interest in public law can not be protected by tort law.The fourth part analyzes the types of legal interest protected by tort law. According to the different intents involved in different legal interest, the legal interest can be divided into three groups: the personal legal interest, the property legal interest and the mixed legal interest. The personal legal interest means mainly general personal interest. The property legal interest includes possession, natural debt and pure economic loss. The mixed legal interest mainly means the legal interest of fetus. The health interest of fetus and the personal status interests are personal legal interest. The inheritance interest and bequeathal interest are property legal interest. The pure economic loss is one of the most attracted legal interest, and is one of the most disputable problems in the field of tort law. Whether the pure economic loss in practical case can be compensated depends on the judgment of the fault of infringer and the causality, and the consideration of social policy at that time.The fifth part analyzes the legislative mode of tort law to protect legal interest. Through the comparison of legislative mode between Anglo-American law system and civil law system and the analysis on the suggestion drafts of tort law put forward by Chinese scholars, the writer thinks that the legislative mode of comprehensive general clause combined with comprehensive enumeration not only can guide the judges' discretion and make the judicial activities more creative, but also can make the discretion of judges limited in the reasonable scope. This mode can protect the legal interest more suitable, and it is mort suitable for our country. Now there is not a uniform civil code in China, the civil rights are not fully regulated. Inversely, our country is in the deeply development period of market economy at present, there are more and more new kinds of interest relationship which require the protection of tort law in the form of legal interest. So, it is urgent to establish a uniform tort law and regulate the type and protection method of legal interest and minimize the deficiency in this aspect. |
PDF Full Text Request