新兴权利的理论证成与线上空间的权利建构

The Theoretical Justification of Emerging Rights and the Construction of Emerging Rights in Cyberspace

现有关于新兴权利的研究通常围绕新兴权利的界定及法律对新兴权利的接纳性展开,并展现出对新兴权利概念的否定与解构。但新兴权利的司法实践表明,是否被法律体系接纳对于新兴权利的成立而言并没有预想的那样重要。当新兴权利被进一步区分而视时,被遗忘权、消费者评价权等线上新兴权利将充分展现出自身的独特性。这些高度依赖于线上空间与网络平台的新兴权利表明,新兴权利可以在生成方式、适用空间、边界划定和运作逻辑等诸多方面与传统权利有所不同,这也重新构成了权利得以“新兴”的原因。

Existing researches on emerging rights usually focuses on the definition of emerging rights and the acceptance of emerging rights by law,and shows the denial and deconstruction of the concept of emerging rights.However,the judicial practice of emerging rights shows that whether they are accepted by the legal system is not as important as expected for the establishment of emerging rights.When emerging rights are further differentiated and viewed,online emerging rights such as the right to be forgotten and consumer's evaluation rights will fully demonstrate their uniqueness.These emerging rights,which are highly dependent on cyberspace and network platforms,show that emerging rights can be different from traditional rights in many aspects such as generation method,applicable space,boundary delimitation,and operational logic.This has also reconstituted the reason for the“emerging”of rights.