Conflict Of Rights Of Legal Thinking

Construction of rule of law in China has gone through three decades. In the theoretical research, we have resolved the problem whether we should be entitled to rights, and partly solved the problem what rights we should be entitled to. In real life, we also have the enjoyment and exercise of many rights. However, in the process of exercising rights, followed a series of new issues, rights conflict is particularly prominent.The traditional view, the law gives people the rights and obligations under the provisions of the appropriate people only according to the law to guide their own behavior, can exercise their rights and obligations. Actually, it is not so simple. Large number of problems encountered in reality is that we have done to their necessary obligations, but in the exercise of their rights will still be subject to mutual interference or influence.This can not help but wonder that there will be conflict between rights. The rights of the main parties are legal. Why do they conflicts? With this question, the paper launched analysis of this social phenomenon and legal phenomenon of rights conflict.This paper consists of six parts.The part of introduction of this paper is to answer that why to choose the project, what to study and how to study. This part is to specify the concept of rights conflict and the significance of studying it, and to introduce the current situation of the research on the project of rights conflict and also make remarks on it, and then explain the research methods and the thinking approach in the thesis. Chapter I discusses the basic issues to rights conflict. First of all, this chapter discriminates the concepts of right, and then defines the concept of right - the legitimacy of acts. And then, around the existence of rights conflict, there are two opposite view. One is denying rights conflict, while the other is approving rights conflict. This chapter discusses these two views respectively and makes comments on them. Finally, this chapter analyzes the concepts of conflict of the rights and the related concepts, and defines the meaning of rights conflict which is studied in this thesis.Chapter II is to classify the conflict of rights. This thesis believes that the right can be divided into moral rights, customary rights, and legal rights according into the origin of forms of rights or the support of rights. On the basis of the classification of rights, rights conflict relating with moral rights is excluded from the research in this paper through the use of exclusion. So the categories of rights conflict mainly include the conflict over the existing customary rights and the following-up legal rights, the conflict over legal rights of typical sense, and the conflict over the existing legal rights and the following-up legal rights.Chapter III is about the integrated and comprehensive analysis in causes of rights conflict. This paper believes that the root cause of the conflict is the limitation of resources. The specific reasons include five aspects: First, the development of science and technology spreads the capacity and scope of influence of people with each other. Second, the change of lifestyle aggravates the conflict over rights exercised by subjects in society. Third, with the level of knowledge and cognitive capabilities, the definition of the damage to others has changed. Forth, social change has transformed the meaning of rights. Fifth, the errors in system arrangement resulted in an inevitable rights conflict.Chapter IV is the key point of this thesis. It explains the practical significance of the research on rights conflict. This chapter seeks to find the principles and ways to solve rights conflict. Adhering to the principles of fairness and justice, based on the different types of rights conflict, the different principles of solutions are put forward. The root cause of rights conflict is the limitation of the resources at specific time and specific places, therefore, people have to increase resources as much as possible to solve the problem. But, after all, resource is scarce in general. So this approach is limited. To solve the problem, as far as the conflict of the rights which can be divided into high and low ranks, we can define the principles of ranks of the rights. As far as the conflict of the rights which are difficult to be divided into high and low ranks, we can regulate the exercise of the rights of one party or two parties of subjects. While as far as the conflict of the rights that are related to the same object and that is associated with certain procedure, we can establish the sequence of the rights. In addition, we encourage two parties to resolve conflict through negotiation, and we can also introduce procedural requirements in order to making conflict be resolved.Chapter V is focus on the specific way to resolve rights conflict. There are three ways in resolving conflict- legislation, judicature and administration. On the legislative route, to avoid rights conflict resulting from mistakes in legislation, we can improve legislation through hearing, all discussions and expert advice and demonstration. At the same time, do post-supervision through building systems of Filing, Constitutional Review and Regulatory Clean-up. On judicial means, we can make up for legislation deficiencies through strengthening the role of the court mediation, the discretion of the judge and the role of judicial interpretation. On the administrative solution, we can timely and effectively respond to new emerging conflicts in the use of the professional, flexible and simple procedures, low cost, comprehensive solution.