| It has been a consensus that rights and interests should be protected differently.However,there is no uniform standard for how rights and interests should be differentiated.At the time of the legislation of tort law,the problem is put on hold because of the difficulty in distinguishing rights from interests.However,the distinction of rights and interests is necessary in many aspects.The rapid development of theory and the urgent need of practice also put this problem on the table.The standards for distinguishing rights and interests are mainly divided into formal standards based on formal characteristics and substantive standards based on substantive characteristics.Due to the vagueness of the expression of rights in Chinese law,the formal standard based on formal characteristics is not suitable for Chinese legal practice.Therefore,we should establish a set of substantive criteria based on substantive characteristics.The three doctrinal standards of "attribution efficiency","exclusion efficiency" and "typical openness of society" developed from German law theory can be referred to.However,there are still some shortcomings in German standards,which are mainly manifested in the inadequate protection of interests not stipulated by law and the special dependence on legal provisions in the illegality of infringement.By reflecting on the relationship between rights and interests,the author tries to solve the problem of insufficient sources of illegality against interests not stipulated by law.Lastly,based on Raz's beneficial understanding of the relationship between rights and interests,this paper evaluates the three doctrinal standards,and holds that on the issue of identification of interests without legal provisions,interests should not be excessively demanded to have"attribution efficiency","exclusion efficiency" should also be judged in individual cases,and "typical openness of society" can be used as a specific criterion for identification. |
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