A Study Of The Methods Of Rights Relief

In the normal meaning, rights are worth enjoying and pursuing, anyinfringement of rights is all improper, unreasonable, but in fact, any countriesand societies can't guarantee that rights are not encroached on or given updefinitely, that is, the infringement of rights is unavoidable in fact, just asIsaiah Berlin to say, " Conflicts and tragedies could not be gotten rid of humanlife ". So, in a country or society, how to realize rights, do not lie in how todispel or eliminate the phenomenon of encroaching rights, but lie in how torelieve or ensure rights. In this kind of meaning, we can say that withoutrelieving or ensuring, there is no existence of rights. Therefore, rights reliefbecomes an indispensable and important content of rights proposition too.As everyone knows, in Great Britain and America's country, "Relief isprior to rights ", it is a legal proverb that everybody knows very well " norelief, no rights ". So, their researches on this proposition are rather deep, andaccumulate quite abundant theory researches results. In current China, with thegradual development and deepening of the market economy and constructionof rule of law, with the enhancement of rights ideas of people, rights reliefbecomes one of the main subjects of jurisprudence. The article uses themethod of positive analysis, comparative analysis and functionalism, examinesthe means or the methods of rights relief in China's existing system of rightsrelief, analyses the reasons that influence people how to choose the means orthe methods of rights relief, attempts to structure the pluralistic system ofrights relief with taking jurisdiction as the core of it. This article divides fourchapters on the construction of the system of rights relief, and analyses andproves altogether.In chapter one, the part elaborates the concept and prerequisite of rightsrelief. " Relief " means " material help " in the original idea, but it often isamplified and means, " remedying one that was damaged ". In this part, wechoose its amplified meaning and "rights relief " means remedying thedamaged rights and safeguards the obligor's legitimate rights and interests.From the prerequisite, there are some conflicts or disputes with people thatcause the harms to rights; From the nature, it means a kind of correction ofconsequence that caused by one party who violated behavior in a related legalrelation; From the result, it means that disputes or conflicts are solved andrights are relieved, the existing rights are resumed or realized. What deservesto be mentioned is rights relief means disputes'solving, but the latter is notequal to the former. Facing conflicts or disputes, people may choose: (1)self-help, (2) avoidance, (3) negotiation, (4) settlement by a third party,(5)toleration. Among them, avoidance and toleration may make disputes solvedbut not make rights relieved and they don't belong to the methods'category ofrights relief.In chapter two, the part analyses the methods of rights relief. The partcarries on comparative analysis between legal and non-legal relief. To besimple, legal relief means being relieved according to legal rules, includingjudicial relief, arbitration and administrative jurisdiction. In modern countrygoverned by law, judicial relief perhaps isn't the best way to relieve rights butmust be the last barrier, therefore becomes one of the most important pillars inthe system of rights relief. Arbitration makes up for the lawsuit's drawback asa kind of methods of rights relief and becomes the most important method indealing with international trade and commercial disputes. Administrativejurisdiction meets more specialized requests in dealing with disputes andbecomes an important method to deal with disputes related to administration.Three kinds of methods of legal relief are separate, supplementary, andstimulative mutually, playing an irreplaceable role in the construction ofsocialist market economy. Besides the methods of legal relief, there arevarious methods of non-legal relief, including folk mediation, government'sletters and visits from the masses, news and public opinions and negotiations,they are playing an important role in social practice too. As a whole, legalmethods are formal; non-legal methods are informal. The two methods bothhave their advantages and limitations. Advantages of legal relief lie in theirstrictly regulatory and mandatory, however, their limitations come from this.Various procedure norms have limited the party's autonomy to a great extent; itis difficult to meet the needs of case flexibility. The advantages of non-legalrelief lie in reflecting the party's autonomy higher. And their advantages comefrom their procedure interests, namely with low costs, rapid and convenientcharacteristic. Certainly, non-legal relief has its functional defects, for example,reason degree is on the low side and authoritativeness is not enough, whichinfluence the realization of rights finally. In chapter three, the part elaborates the choice of the methods of rightsrelief. There are various methods of rights relief, and which method peoplewould choose on earth depends on many factors. This part has enumerated theexperiences of U.S.A, Japan, Germany and China at first, and then analyzesthe factors that influence the choice of the methods of rights relief, includingsocial development degree, cultural tradition, interests calculating and trust intrial. Certainly, there are many factors that restrict people from choosing the...