On The Conflict Of Rights

Theories of right is the central part of the theory of law, the theory of conflict of rights is one of the most important theories of right. The study on theory of conflict of rights is not only important to understand the theories of right, but also important to understand and resolve many legal problems both in theory and in practice.In the Abstract, I mainly illuminate the significance of studying conflict of rights, the structure and contents of this paper, and the method of studying conflict of rights.In Chapter 1, the conception and classification of conflict of rights are studied. Conflict of rights means one state which rights are incompatible. In legal sense, conflict of rights means that one incompatible state of rights can lead to legal consequences. Conflict of rights is different from the conception of crime and tort, crime and tort can not be regarded as acts derived from rights for their unjustness both in morality and in law. Act of rescue is one kind of conflict of rights, act of rescue related to two kind of rights, and these two kind of rights can not be compatible in emergent situations. The classification of conflict of rights are not only helpful for understanding particular conflict of rights, but also useful to understand the relationships of different right shoulders in the view of theory of conflict of rights. Conflict of rights can be classified as follows: Conflict of moral rights; conflict of legal rights; conflict of moral rights and legal rights; apparent conflict of rights; illusive conflict of rights; real conflict of rights; conflict of individual rights and rights of group; conflict of individual rights and rights of state and so on.In Chapter 2, the origin of conflict of rights is demonstrated in the light of human nature and society. Why rights can be conflicting is one most important part of theories of conflict of rights. The essential reasons of conflict of rights are the diversities of human nature and diversities of human itself, that means the uncommon human nature and different needs of different persons are the base of conflict of rights; the limited resources is also one important reason of conflict of rights. The objective reasons of conflict of rights are the limits of law system and law themselves which propose the distribution and relief of rights. The origin of conflict of rights avoidably concern the basis of rights, in this paper, one basis of rights which is based on the needs of human nature is proposed.In Chapter 3, the particular ways of resolving the conflict of rights are showed. There have two ways to resolving the conflict of rights, one is in the preventive sense, and the other is in the afterwards balancing sense. Universalhuman rights education can make consensus among different right shoulders about theories of righ, and then can prevent conflict of rights in some extent. The priority of rights and limitation of rights are two most important aspects of distribution of rights in the sense of resolving conflict of rights. Judicial judging is one usual way of resolving conflict of right in reality, in the view of resolving conflict of rights, there have two most important aspects of judicial judging, one is the application of law, and the another is judicial reasoning.In Chapter 4, the theory and resolving mechanism of conflict of rights are discussed. Conflicts of rights in international human rights law are no less than the conflicts of rights in traditional constitutional laws both in the view of logic and politics, and also no less than the conflicts of rights in common right talks in the view of logic and politics. These clauses about limitation or restriction of rights and derogation of rights are articles that can reduce and prevent conflicts of rights. The forms, limits and principles of limitation of rights can avoid and resolve some conflicts of rights in some sense. These limitations of rights can be used for reference in domestic law both in substantial and procedural sense. Derogation of rights can propose us one way of...