权利冲突的司法化解

法定权利之间的冲突并非一个伪命题,其在司法实践中颇为常见。受到立法者的有限理性、社会的变动性以及法律语言的模糊性等多重因素的影响,某些情形下权利的边界未被立法者清晰界定,并由此引发法定权利之间的冲突。权利冲突的实质是利益冲突和价值冲突。权利冲突的存在导致了法律适用的难题,法官需要借助个案中的法益衡量来确定权利边界并进而化解权利冲突。法官在进行法益衡量时,可以参考权利位阶来作出判断,然而权利位阶秩序缺乏整体确定性,仅有有限的参考价值,因此法益衡量还需诉诸比例原则。比例原则包括适当性原则、必要性原则和狭义的比例原则三项子原则。比例原则能够指引法官对权利作客观和理性的衡量,最大限度地缩小法官的裁量余地。鉴于个案中的法益衡量具有决策性质,法官必须在司法能动主义与司法克制主义之间维持恰当的平衡,在解决权利冲突时不能逾越司法的限度。

Judicial Solution to Conflicts of Rights

The conflict of legal rights is not a pseudo-proposition. It exists in many legal areas and is very common in judicial practice. Due to the influence of multiple factors, such as the limited rationality of legislators, social variability and ambiguity of legal language, the boundaries between rights are not clearly defined by legislators under certain circumstance, which can lead to conflicts of legal rights. The essence of conflicts of legal rights is the conflicts of interests and values. Conflicts of legal rights often lead to the difficult problem of application of law. Judges need to define the boundaries between legal rights by striking a balance between competing legal interests in each individual case, so as to resolve the conflicts of rights. In doing so, judges should consider the hierarchy of rights. However, rights-hierarchy as a whole lacks certainty and therefore has only limited value in balancing legal interests. If judges can''t make judgment with the help of the hierarchy of rights, they need to turn to the principle of proportionality, which consists of three sub-principles, i.e., the principle of appropriateness, the principle of necessity, and the principle of proportionality in a narrow sense. The principle can guide judges to make rational and objective decisions in balancing rights and minimize their judicial discretion. Considering the uncertainty and the decision-making nature of the balancing of legal interests, it is very important that judges should strike a prudent balance between judicial activism and judicial self-restraint and avoid overstepping judicial limits in the process of resolving conflicts of rights.