| Chinese legal theorists and practitioners have some suggestions for the establishment of a system that distinguishes between the protection of rights and the protection of interests, but the Chinese legal field still lacks in-depth research on how to distinguish between rights and interests in the tort law. The existing discussion only argues for the necessity of such distinction, but there has been few discussion of how such distinction could be feasibly implemented, so the current theories have little power. The German civil law offers three legal criteria for the distinction between rights and interests. Rights in the tort law should have the “allocation function”, the “exclusion function” and the “typical social obviousness”. The core of the “allocation function” is to assign a certain interest to a certain subject, while the center of the “exclusion function” is to exclude all the unlawful interference from others. Moreover, the “typical social obviousness” is to make general subjects have the general possibility of identifying the objects of interest, thus takes into account the freedom to act of the potential infringers. Those which satisfy the three criteria concurrently are rights in tort law, otherwise they are interests. With tort law weighted towards protecting the rights and interests of the victim, the judges begin to tend to interpret some interests (pure economical interests) as rights, where the claimants are few in number and clearly defined, so as to produce more and convenient bases for claims. This has blurred in some instances the three doctrinal criteria discussed above. At this point, we should apply the perspective of legal policy to remedy and bolster the explanatory power of legal doctrine. |
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