نوع مقاله : مقاله پژوهشی
عنوان مقاله English
نویسندگان English
The expansion of fundamental human rights has transformed legal systems into an arena of inevitable conflict. Employing a descriptive-analytical method, this research seeks to answer what criteria distinguish genuine from spurious conflicts, and how judicial systems can navigate these legal tragedies. The findings indicate that denying genuine conflict in the specificationist approach fails to explain the "moral residue" of the defeated right. This study proposes a three-stage judicial decision-making algorithm. The first step screens genuine conflicts from spurious ones—often arising from state interest-concealment or aggregation—through the "converse situation test" and "conflicting duties test." The second step determines the normative coordinates of conflicting rights by employing the "three-zone model" (core, periphery, margin of appreciation). In the third step, appropriate strategies are selected: within the periphery, the "pro tanto right" model and structured balancing are utilized; at the intersection of hard cores, the strategy of "practical concordance" is applied to optimize both rights. Consequently, the judge's mission is not to seek an absolute winner, but to adopt a rights-based model for "harm management," establishing fair balance, ensuring transparency in allocating the tragic burden, and considering compensation.
کلیدواژهها English