“合标”行为及其私法评价

On "Standard-complied" Conduct and Its Evaluation in Private Law

作为法律评价对象的"合标"行为,应根据标准的体系及标准之间的关系,构建"合标"行为的认定规则。在私法体系中,合同法和侵权法对"合标"行为的评价存在差异:在合同法中,"合标"即合法;在侵权法上,"合标"并不必然合法。这种差异是合同法与侵权法的不同功能和宗旨所导致的。在侵权法领域,对"合标"行为的评价也存在差异:基于侵权法的权利保护宗旨,"合标"不一定合法,但依据法律的规定,在不可量物侵入等场合,"合标"行为也可以获得合法性的评价。这一差异的原因不在法的功能和宗旨层面上,而在法律技术层面上。"合标"即合法作为侵权法评价的特殊规则,应以有特别法规定为必要。

The "standard-complied" conduct is the object of legal evaluation, and its determination rule should be constructed on basis of between the standard system and the standard. In the private law system, the evaluation of "standard-complied" conduct in contract law and tort law varies: in terms of contract law, being "standard-complied" means being lawful;however, in terms of tort law, being "standard-complied" is not necessarily legal. Such difference is due to different functions and purposes of contract law and tort law. In the field of tort law, there are different results of evaluation of "standard-complied" conduct: based on the purpose of tort law of right protection, being "standard-complied" is not necessarily legal, but according to legal provisions, "standard-complied" conduct can be evaluated as legal in situations such as invasion by immeasurable objects. The reason for such difference lies not in the function and purpose of law, but at the level of legal techniques. The special rule that being "standard-complied" means being legal in the field of tort law requires special regulation in the law.