A Thought On The Positioning For Priority In The System Of Civil Right

In the laws on various countries in the world, it is different at the inherited extent for the priority system, but no matter with any names or any forms, it has implemented the detailed content for the priority system in the legal systems in all the countries, this is the embodiment of life-force for the priority system in social life actually. Laws exist and develop for solving actual problems and the satisfy the demand of practice, the reason for the priority system possessing life-force, is just for suit to the demands of adjusting actual life with salary by laws. With the development of society, more and more scholars research on the priority system, and raise many fine suggestions and points of view for legislative priority system. While in this thesis, it has analyzed on the priority at the aspect of rights, place the priority in the frame of civil right into an accurate position, through this kind of positioning analysis, it has concluded and summarized priority as the features of rights, and make this point as the civil theoretic support for pushing the research on the priority system.This thesis can be divided into four parts.The first part is about the conception and current researching situation on the system of civil right. Civil right is the core content of Civil Law, the foundation to establish theoretic system in Civil Law, and the key to understand civil legal phenomenon. This point of view has identified with more and more scholars and become the common understanding in jurisprudential academic circles. With the development of time, the types, qualities, and content of civil right are all developing, the working of research on civil right is also developing, during this research, the system of civil right is the most important. Civil right has many types, and the qualities of various rights are far from similar, so it is necessary to classify the different qualities of rights, to make a relative complete system. In this system, different rights each is in its proper place, and shows the features of themselves, so this the fundamental profit to establish the system of civil right. Through introduce to the definition and current research situation for the system of civil right, it tries to melt the positioning of priority into the big frame, the system of civil right.The second part is about the evaluation and analysis on the priority and the priority system. The priority system is an important legal system to fulfill essential equal in society, and maintain the social order, the purpose for establishing is to maintain the social order, like property and personal safe. While how the priority system protects some rights which should be protected priory much fairer. This needs us to balance priority, only to make a definite positioning priority in theory, it can promote the perfection of priority system better, and finally realize the legislative purpose of priority system. Through the introduction to the conception of priority, the evaluation and analysis on priority system, and then introduce to the relations and difference between priority and priority system, raised stress on the positioning research of priority is the base and presupposition of priority system.The third part is about the positioning analysis on the priority in the system of civil right. Although in the current existing civil legal system, there has not make the priority as a king of basic right for fixation, nor regulate on priority in special chapter and section like foreign Civil Code, macroscopically, among the current existing civil legislation, the priority is now osmosing to the laws on various department with a certain tendency, the author considers that it is necessary to position the priority with various types in the frame of civil right, find accurately in the entire system of civil right, then explore a scientific and theoretic accordance to relieve priority. Through analyzed on quality of priority, partial cases and legal provisions in detail, it has concluded the features of priority, furthermore raised the personal point of view on positioning the priority in the system of civil right.The fourth part is about several points of view in the course of accumulating the perfection of priority system by the judicial practice. The origination for the priority being infringed is that when the elementary rights is infringed which priority depends on, and make it into truth and meanwhile being infringed, or it can be said the happen of priority make presupposition of being infringed, the non-infringe priority is not the priority in legal meaning, while infringement of priority is company with the infringed elementary rights which priority depends on. Priority stands in the front of infringed elementary rights, while elementary rights have not infringed, and stay in a safe situation, there exist no conflict of rights, then to priority, so there has no need to talk about relieving priority. After clear about this point, exploring to relieve priority has a fundamental foothold, this foothold is the relief for priority, also is a supplementary effect of priority embodied by a certain legal method, while to embody this legal value of priority, it must establish upon the realization elementary rights assisted by priority.In the research on Civil Law, priority as a kind of civil right is worth for us to discuss and research repeatedly. From the recent discussions on the quality of priority in domestic jurisprudential academic circles, it can be understood that the research on it is far from the ideal depth. In this thesis, it has raised some points of view and tentative ideas on positioning the priority in the system of civil right; all these are some simple understandings, which only with the purpose of attached the importance to research on priority by the scholars.