選取與變更姓名的權利規則，一種基於新利益法學方法的分析

法院在指導案例89號北雁雲依案中認為取名“北雁雲依”違背公序良俗的裁決引發爭議。取名北雁雲依其實並不違背公序良俗，但是違反了姓名選取的傳統習慣。妥當的方法是採取新利益法學分析方法，探知本案真正的利益主體是新生兒，並將其置於監護制度中分析具體的利益關係。監護制度的制度利益在於維護被監護人最大利益。監護人為新生兒選取姓名時應當盡到合理注意義務，為防止被監護人利益受到損害，應該遵循隨父姓或者母姓的傳統習慣，不得選取第三姓氏。姓名變更與姓名選取具有相同的性質，也應該遵循姓名權人利益最大化原則。按照情境主義分析方法，從新生兒、未成年人到成年人的姓名變更形成了一道完整的光譜，自由與限制在不同階段呈現出不同的色調。基於最有利於姓名權人利益的原則，完全民事行為能力人對自我利益已有清晰認知，姓名變更可以採取自由主義;0—6周歲兒童不能保護自己利益，變更兒童姓名需要作出嚴格限制;6—18周歲未成年人對姓名意義已有相當程度的認知，變更姓名時應當征得其同意。

In Guiding Case No. 89 (Beiyan Yunyi), the court held that the choice of the name“Beiyan Yunyi”violated public order and good morals, a ruling that has generated considerable controversy. In fact, the name“Beiyan Yunyi”does not contravene public order or morality as such; rather, it departs from traditional naming conventions. A more appropriate analytical approach is provided by Neo-Jurisprudence of Interest. From this perspective, the true bearer of interests in this case is the newborn child, whose situation should be examined within the framework of the guardianship system in order to identify the concrete constellation of interests involved. The institutional purpose of guardianship lies in safeguarding the best interests of the ward. When selecting a name for a newborn, guardians are therefore required to exercise reasonable care. To prevent potential harm to the ward's interests, they should adhere to the traditional practice of using either the father's or the mother's surname and should not choose a third surname. The legal nature of name changes is identical to that of name selection and should likewise be governed by the principle of maximizing the interests of the name holder. Applying a contextualist method of analysis, name changes from newborns to minors and ultimately to adults form a continuous spectrum, within which freedom and restriction assume different gradations at different stages. Based on the principle of acting in the best interests of the holder of the right to a name, persons with full civil capacity—who possess a clear understanding of their own interests—should enjoy a liberal regime of name change. By contrast, children aged 0-6 years are incapable of protecting their own interests, and changes to their names should therefore be subject to strict limitations. Minors aged 6-18, who already possess a substantial understanding of the meaning and implications of their names, should have their consent obtained prior to any name change.