论权利冲突的规范本质及化解路径

On the Normative Essence of the Conflict of Rights and the Way to Solve

无论是理论界,还是实务界,均未对权利冲突的法律性质、判断标准及法律后果形成共识。厘清权利冲突与侵权行为、权利滥用的内在关系,是研究权利冲突的前提。权利冲突与侵权行为在权利基础、规范依据、主观可责性等方面具有本质区别,侵权责任亦非权利冲突的法律后果;虽然权利冲突与权利滥用均具备权利基础,但权利滥用不符合正当性要求,运用禁止权利滥用原则,也无法妥适解决权利冲突问题。相较于侵权行为与权利滥用,权利冲突具有独立的识别标准以及多元的特有法律后果,后者包括权利间的相互让步、权利的超越、补偿之债、容忍义务等。

Neither theorists nor the practitioners have formed a consensus on the legal nature,the standard of judgment and the legal consequences of the conflict of rights. Clarifying the relationship between the conflict of rights and infringement and abuse of rights is the the premise of studying the conflict of rights. The conflict of rights and infringement are different in the foundation of rights,normative basis and subjective responsibility. Tort liability is not the legal consequence of conflict of rights. Although the conflict of rights and the abuses of rights both have the right foundation,abuse of rights does not meet the requirements of legitimacy,and the application of the principle of prohibiting abuse of rights can not properly solve the problem of the conflict of rights. Compared with abuse of rights and infringement,the conflict of rights has independent criterion of identification and multiple legal consequences,including mutual concessions of rights,transcendence of rights,debt of compensation,obligations of tolerance,etc.