Legal Discussion On The Right Of Participating Sacrificial Ceremony

In recent years, dissensions about the right of participating sacrificial ceremony have been greatly increasing in China. Because of our laws does not explicitly provide that right, leading to the court's attitudes and theoretical explanations are different, even appears opposite verdicts when they trial such dissensions. It is show that how to deal with these dissensions in the judicial practice is existence a great controversy. Although in the theorists, the scholars also proceeded some degrees of research and discussion about the relevant problems of the right of participating sacrificial ceremony, but this study has just begun, it was not to reach consensus on many issues, and not form a complete theoretical system. Therefore, in-depth study with the right of participating sacrificial ceremony has its reality and necessity.The right of participating sacrificial ceremony as the product of the people pursues rights, which embodies the people's interest demands, because of this interest demand is a spiritual interest essentially, so it should be protected by the civil law. It is based on such considerations, the article uses comparative studies, historical analysis, and empirical research methods to analysis the relevant problems of the right, and in order to raise the academic circles proceeded in-depth study with it, so as to provide a theoretical basis for protecting the owner's interests more favorable in the judicial practice.This article is divided into four parts:Part I:To discuss the concept and legal relations of the right of participating sacrificial ceremony. The article analysis the concept of the right, and think it is a right of a natural person mourns and grieves to the close relatives that has dead. Later, the article analysis the subject, object, and content of the right's legal relations, and come to a conclusion that this right is a spiritual interest essentially which is should be protected by the civil law.Part II:The path of the right of participating sacrificial ceremony protected by civil law. Considering this right is not a legal right, so the following two ways can be achieved to protect the memorial interests. One is apply the civil habits and principles of public order and good morals; the other one is to adopt rules to protect --in the name of protecting rights to achieved the purpose of protecting memorial interests, which consists of two paths, applying relatives right system and reputation system. Part III:Whether there is a need to increase the right of participating sacrificial ceremony to legal rights. By analyzing the cultural foundation of memorial, conclusing that the nature of this right is a folk custom, the more areas are ethics. Moreover, our existing judicial resources are extremely limited, so, now it is not appropriate to increase this right to legal rights.Part IV:The special issues of this right which namely whether moral damage compensation system may be applicable. To discuss the value orientation of moral damage compensation system and Article 22 of Tort Liability Law, the article believes that these dissensions can apply moral damage compensation system.