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On Civil Remedies Of Civil Rights In Private Law

Posted on:2005-09-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z Q YinFull Text:PDF
GTID:1116360122981892Subject:Civil and Commercial Law
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From the angle of the application scope and functions of the tort law, this thesis, consisted of four chapters, is dedicated to analyse and discuss the rules concerning civil remedies of civil rights. By an analysis on the nature of civil rights, the author aims to screen out the rights which could be redressed by the tort law, so as to explain the function of the tort law is to provide remedies for the damaged rights. Three issues have been discussed in the first chapter named "General Theories of Civil Rights" which are as follows:Firstly, the concept and nature of right. The author takes the view that each different definition of "right" in the history has its own significance though all having unexceptionally been questioned, for they are different understandings of the concept of "right' from different angles. However, as a basic element of legal research, the concept of right ought to be clearly defined. It is found that the definition made by Fan Jinxue, a Chinese scholar, is admissible, which defines that the right is something of due. In consideration of the coming discussion of the application scope of the tort law, the types of right based on the existing forms of right have also been touched in this part. It is considered that the right should be classified into three types, namely, the right of ought to be entitled, the right defined by law and the right of actually enjoyed, or, be divided into two types: the right of ought to be entitled and the right of actually enjoyed. The former means those rights that should be presently entitled by law or in the future however have not yet been defined by the current laws; while the latter refers to those rights that have already been affirmed or been effectively enjoyed by the owner. The purpose of the discussion in this part is to resolve the confusion in the connotation of the concept of right. Secondly, general theories of the concept and nature of civil rights. In this part, the author introduces three major doctrines concerning the nature of civil rights, namely, the doctrine of will, the doctrine of interests and that of the power of law, and indicates that, as the starting point and also the final goal of the private right, interests is an indispensable component with respect to the nature of civil rights. Historically, "the doctrine of interests" already includes "the power of law", and therefore the civil right could also be interpreted as "the power of law that could enjoy specific interests". This definition not only shows that the right itself possesses "the power of law", but also explains the reason why the civil right can be self-remedied. The third issue is about a summary of theories of civil remedies of civil rights. The focus of this part is the concept and the type of remedy, meanwhile, the concept of the right to remedy has also been generally discussed. The remedy of right means to settle down the conflicts of rights by way of law or lawlike means. It can be classified into two categories when taking the legal type of the implementation of remedy as the dividing line, namely, constitutional remedy, criminal remedy, administrative remedy and civil remedy. In terms of its object, civil remedy could be further categoried as remedies for real right, creditor's right, intellectual property right and remedies provided by the tort law. The right to remedy is a right of claim based on the fact that the original right has been infringed or endangered. Its nature is the interests protected by the original right, other than the right itself. As one of the focuses of the thesis, the author analyses and discusses the scope of right regulated by the tort law in Chapter Two, aiming at defining the concept of "tortious act'' and thereby determining the application scope of the tort law. Several issues being touched upon are as follows:Firstly, term analysis. It is indicated that the term "tortious act" comes from foreign lands. However, the real meaning of the term in Latin, German, French and Japanese which we u...
Keywords/Search Tags:Remedies
PDF Full Text Request
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