On The Protection Of The Right Of Mercy

In recent years, with the development of the society, dissensions about participating sacrificial ceremony have been greatly increasing in China. However, our laws does not clear stipulation that right, which causes the judgments different in the practice. It seriously affected the judicial authority of China. According to the issue in the judicial practice, the scholars proceed some degrees of discussion. Because of the controversy, they does not come to an agreement. Therefore, in-depth discuss with the right of participating sacrificial ceremony has its theoretical significance and realistic significance.There are five parts in this paper:Part one:To analyze the concept and legal nature of sacrifice right. Beginning with the analysis of the concept, the paper agrees that the sacrifice right is a natural person’s right, which is the intention and possibility for a specific range of the relatives to mourn or memorize the death basing on the identity relationship. Great dispute exists because the scholars could not assure sacrifice right belongs to the right of personality or identity, to the absolute right or relative right, so this paper analyze the nature of sacrifice right. Through the analysis, the paper get the conclusion that sacrifice right belongs to the right of identity instead of personality, and owns the absolute right and relative right.Part two:To analyze the right of sacrifice right, which is the key and core of the paper. In view of the fact that sacrifice right is not a statutory right, some scholars proposed to protect it by the existing system design. To get the conclusion by using reduction, namely through the existing system of ownership, the right of reputation system or using the system of liability is not enough to protect their rights of sacrifice. The paper analyzes the necessity of sacrifice right from legal and judicial practice positively, and thinks that sacrifice right should exist as a statutory right. On how to confirming right, the paper points out the best way is to legislate, which could clearly stipulate the subject of sacrifice right, the powers and the ways of infringing the right and also the civil liability for infringement.Part three:It analyses the type of violating memorial ceremony,including violate the right of protecting goods in good condition; violate the right of saying goodbye to bone; violate the right of proceeding memorial ceremony; violate the right of signing on the tombstone and getting the information about the dead and so on.Part four:It analyses the key component that violate memorial ceremony dupty and definite way that assume duty. It consider that violate memorial ceremony action just need have ordinary component. The way of assuming duty is moral damage、apologize、eliminate effect and rehab.Part five:It analyses the trait of private law about the right of memorial ceremony and the difference between private law and public law, explain the necessity and advantage about private law.