| 英文摘要 |
Regarding the identification of “specific thing of personal significance” under Article 1183(2) of the Civil Code, the situation of judicial practice is not optimistic. In general, there is a lack of scientific identification methods in refereeing. Preliminary attempts to conceptualize special types of property in existing research are instructive. However, such an attempt has serious logical problems and is suspected of shaking the external system. There is the difficulty of exhaustiveness in the establishment of “specific thing of personal significance”. On this issue, legislation presents a dangerous tendency of conceptual hollowing out, and there is a phenomenon in which “attribution” is used instead of “containment” in judicial adjudication. Therefore, this paper thinks that “the specific thing with personal meaning” should be considered as a type. As a “normative reality type”, “specific thing of personal significance” is the description of the appearance by the legislator, which includes three characteristics of “personal significance”, “specificity” and “physical object”. Behind the standard appearance, the legislators evaluation point of view is the balance of security and freedom. Different from the traditional abstract conceptual thinking which emphasizes the inclusion of features one by one, determining whether the object involved in the case can be classified into this type is actually to grasp the similarity with the standard appearance as a whole. Judges should first obtain an overall picture of the object involved in the case on the basis of examining specific facts. Secondly, with regard to the more common objects, judges can make judgments by using three types of typical case types and their rule networks in existing practice. Finally, for difficult cases beyond the typical case type, the determination result depends on the judges value judgment. Regarding the final judgment space left for the judge, an affirmative evaluation should be made after excluding the object that obviously does not belong to the “specific thing of personal significance”, so as to prevent the judgment result that violates the substantive justice. |
