论文部分内容阅读
名誉侵权责任的认定,涉及名誉权与表达自由的平衡,是各个国家和地区共同面对的难题。基本权利的私法效力与侵权法的宪法化是平衡冲突价值的理论基础。我国学者提出了价值位阶论、个案衡量论以及抗辩体系论等模式。但各有其现实困境。名誉权与表达自由均为宪法保护的基本权利,二者并无孰优孰劣的位阶之分,只能通过具体的利益衡量决定保护的优先顺位。基于我国现行立法体例、司法运行现状以及宪法实施机制,建议摒弃比较法上较为通行的个案衡量模式,而由最高人民法院通过规范性司法解释来明确“违法性”、“过错”等责任构成要件的合宪性解释标准。
The recognition of the reputation tort liability involves the balance between the right of reputation and the freedom of expression, which is a common problem faced by all countries and regions. The validity of the private law of the basic rights and the constitution of the tort law are the theoretical basis for balancing the value of conflicts. Our country scholars put forward the theory of value and order theory, case measurement and defense system theory and other models. However, each has its own realistic predicament. Both the right of reputation and the freedom of expression are the basic rights of the constitutional protection. There is no superiority or inferiority between the two. The priority of protection can only be decided through the measurement of specific interests. Based on China’s current legislative system, judicial operation status and constitutional implementation mechanism, it is suggested to abandon the relatively common case measurement model in comparative law, and the Supreme People’s Court clarify the “illegality” and “fault” by means of normative judicial interpretation. Such as the constituent elements of liability constitutional interpretation of standards.