动态系统论视角下人格权禁令制度的差异化适用

Differentiated application of the injunction system of personal rights from the perspective of dynamic systems theory

司法实践与既有研究均指向人格权禁令制度宜差异化适用,但人格权禁令制度如何差异化适用仍未明确。为明确差异化裁判进路,人格权禁令制度应当选择动态系统论裁判方法,合理归纳差异化适用的类型基础,并通过动态系统论构造差异化适用路径,即区分物质性人格权与精神性人格权、具体人格权与一般人格权以及财产性人格权与非财产性人格权的不同考量因素。通过研究以期使法官形成较为稳定的裁判进路,促进法官类案类判,提高司法公信力。

Judicial practice and existing research point out that the personality right injunction system should be applied differently, but how to apply it differently is still unclear. In order to clarify the differentiated judgment approach, the personality right injunction system should choose the judgment method of the dynamic system theory, reasonably summarize the type basis of differentiated application, and construct the differentiated application path through the dynamic system theory. That is, the injunction system of personality right should distinguish the different factors of material personality right and spiritual personality right, concrete personality right and general personality right, and property personality right and non-property personality right. The study aims to enable the judges to form a more stable way of judgment, promote the judges′ case and judgment, and improve the judicial credibility.