The judicial judge on the value consensus degree of new personality right
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D923

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    Abstract:

    The personality right system is open, and the social development demand causes new personality right to produce and relevant dispute to emerge unceasingly, so the judge often falls into the judicial dilemma of confirming it or not.In order to solve this problem, it is urgent to establish a judicial confirming standard, and the value consensus degree is the core element of the standard.By constructing the judicial judging system of value consensus degree from five angles including the legitimacy of the right source, the importance of the right object, the publicity of the right form, the being infringed degree of the right field and the independence of the right type, we can provide a convincing theoretical reference in solving relevant disputes, consolidate the theoretical foundation of the new personality right judicial argumentation and strengthen the predictability of the relevant judicial decision.The right confirmation paradigm of the new personality right can be concluded into four types including the right being grafted one, the right element expanded one, the general clause being interpreted one and the right being declared one, and different paradigms have different value consensus requirement.The right being declared paradigm requires the highest degree of value consensus, which tests the judge's judicial ability and wisdom.We should not only analyze the new personality right according to the different value consensus degree, but also make holistic judgment on the value consensus degree according to the differences among the right confirmation paradigms in the specific judicial judgment.

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徐钝.新型人格权价值共识度的司法判断[J].重庆大学学报社会科学版,2020,26(2):108~118

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History
  • Received:
  • Revised:January 14,2019
  • Adopted:
  • Online: March 14,2020
  • Published: