On Inference Of Rights

Right has an important place in the modern law. Though when we refer to law, we more think of the rights prescribed definitely in legal norms, intact legal rights should also include the implied rights which implied in law and can be opened out by right inference. In fact, so-called"implied right"is more a kind of theoretic explanation or theoretic generalization of abroad rights acknowledgement and rights protection from the judiciary that think of flowing rights request from plebs in legal practice by holistic understanding of existing law and given state of affairs. Based on this problem consciousness and primary cognition, the thesis analyses systematically and theoretically the concepts of inference of rights, the meaning of inference of rights, the subjects of inference of rights, the means and limitations of inference of rights, inference of rights and right creation and inference of rights and legal practice by semantic analysis, value analysis, compared analysis and case analysis.Chapter One: the concepts of inference of rights. The thesis analyses some kind of given paraphrase about inference of rights and puts forward an all-around definition and explanation on the basis of cleaning the concept of right and inference. Inference of rights is a process and a result of opening out and validating implied rights from known legal information by exercise solely or synthetically form reasoning and substance reasoning and by combining society, economy, culture, law and so on. Firstly, inference of rights should stand the value position of care for human rights, stand the theoretic position of right-orientation and stand the norm position of the integrative legal theory. Secondly, inference of rights exists not only in some special phase of legal practice. I think it occurs in the whole process of legislation, enforcement, judicature and abiding by law. Thirdly, the subjects of inference of rights are not simple and single subjects. They include every participator and speculator of legal theory in every level of legal practice. Fourthly, the start of inference of rights is certain legal information or legal sources including statutes, habits, cases, doctrines, general principles and so on. Fifthly, the final result of inference of rights is legal rights. Lastly, the word"inference"in right inference is not equal to legal presumption on the basis of"presumption"or"fiction". It emphasizes more legal exposure and legal validation of"ambiguous"but"certain""implied right". Hereby, the thesis analyses further the concept of inference of rights. I think"inference of rights"is a concept of multilayer meanings, a concept of value-orientation and a concept of relationship. The following chapters are a more detailed research around the above basic orientations.Chapter Two: the meaning of inference of rights. The problem of why we need inference of rights consists of two considerations. On the one hand, why we need"inference"of"rights"? That is, the necessity of inference of rights. On the other hand, we'll concern the value of"inference of rights". As to the first problem, I think it can be disassembled the following two steps. Firstly, why it is inference of"rights"and why it can not be replaced by inference of duties or inference of responsabilities only according to the structural symmetry between right and duty. Here, I will analyse from the indispensability of the right itself as to duty and responsibility. Secondly, why it is right"inference"and is not right"explicit stipulation". Of course, we can express accurately this problem in the following way: why we can not wholly depend on explicit legal right and why we depend on implied right sometimes. It is the above-mentioned auxiliary research that support internally or supply a foundation for the function research on inference of rights which advances the perfection of rights system and legal development in a more direct sense. Inference of rights exerts the following more large functions such as strengthening law construction, perfecting Constitution and democracy, favoring legal system's transformation by strengthening the relationship of rights system, filling up interstice of rights system, widening rights system. This direct function research is also a more deep cognition and sublimation of the basic opinion,"inference of rights is spirit of the modern law". In this sense, inference of rights is rational concept stretch of norm interstice in dealing with special legal problems.Chapter Three: the subjects of inference of rights. We insist on a broad subject principle in this problem in accord with a proper orientation of the concept of inference of rights So-called"broad subject"principle is a research of human-orientation which emphasizes and does not avoid the factor of"human"instead of a research of doctrinal, nonobjective and not concerning human methodology. So-called"broad subject"principle more emphasizes the role of people in advancing right development and perfecting democracy and rule of law and avoids limiting the subject only to the legislators and the judges. But we must notice that it is not sacrifice the difference along different subjects. It notices different subjects must be concerned in the different processes and limits for maintaining legal system uniform and law specialization. On the base of above cognition, I demonstrate the reasonability of multiple subjects of inference of rights from the following facets: the inner provision, the qualification establishment of the subject of inference of rights and mutual effects among the subjects. The mutual effects among the subjects accord with"communicative rationality"emphasized by the modern legal theory and ensures the reality of"inferred rights"of"inference of rights"by mutual communication and effects among multiple subjects in certain meanings.Chapter Four: the means and limitations of inference of rights. Enclosing the basic orientation, inference of rights is a concept of multiple meanings, I limit inference of rights in the inference of legal rights and explain several means of inference of rights in the level of the inference of legal rights by legislative text analysis, judicatory explanation and special, true and typical case analysis. Firstly, it is inference of rights based on legal rules. It includes legal rights inferred from legal rights, legal rights inferred from legal duties and legal right from legal responsibilities. Secondly, it is inference of rights based on legal principles. It includes inference of legal rights from the general legal principles and special inference of legal rights principle,"Nothing may be prevented which is not forbidden by law". Thirdly, it is inference of rights based on legal concepts. Last, the chapter analyses essential principles and limitations. I think these principles include the principle of rule of law, hierarchy principle, felicitousness principle and priority principle of people's behavior in application of right inference. In the same time, inference of rights is also restricted by law and polity system, economy and society system and ethic and moral factors. All of these principle and limitations together guarantee the propriety of inference of rights.Chapter Five: inference of rights and creation of rights. Here, I define inference of rights on the exterior inference of rights which mainly proceeds by dialectical inference and explores deeper implied right. It is a slow right evolution focused on finding of rights. It more resembles finding of rights or request of prescribing explicitly those implied rights found. It emphasizes"opening out"or"finding""implied rights"in law by legal explanation and is logic of"being from being". Here, I define creation of rights as the creation of rights in legislation which has been accepted generally. It is a creative process of prescribing profits which should be protected but can not both be inferred from existing law and contained only by an expanding explanation in legislation. Comparing with"inference of rights", it more emphasizes"new"regulation for"new"rights and is logic of"being from nothing". In this above sense, I think inference of rights and creation of rights are two different cognition approaches and different theories about right and law. I think they are basic ways of right development and analyze the mutual function of them.Chapter Six: inference of rights and legal practice. Inference of rights is a theoretic generalization to specific right practice in legal practice. Affirming and protecting the privacy right and the fetus right in the judicatory practice are typical cases in which inference of rights is applied widely. Meanwhile, I think inference of rights restricts judicial discretion in three ways for guaranteeing justness and propriety of judicature in right protection and for differing from so-called judicial right creation and judicial legislation. Firstly, inference of rights is restricted internally by"implied right"so as to different from willful right creation or judicial legislation. It is the function of finding and applying"implied law"or"implied right"that supply a vale guide to creation of rights or judicial legislation and further supply a reasonable restrict and direction to judicial discretion. Secondly, inference of rights is based on"communication of multiple subjects"and not on arbitrary determination only from one man. Proper decentralization and abundant and equal communication guarantee rationality and acceptance of inference of rights. Thirdly, the levels of inference of rights and different norms and restrictions of different level in judicature also guarantee the quality of inference of rights in judicial process.