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Sacrifice Right: The Interplay Between Customs And Laws

Posted on:2012-05-09Degree:MasterType:Thesis
Country:ChinaCandidate:X M XuFull Text:PDF
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The cases involving disputes of sacrifice right tend to increase among cases that junior courts adjudicate in recent years. But frequently the judges find themselves in a tight corner where no laws could be abided by since the sacrifice right is still not stipulated by any legal provisions. Although the judicial practices and conventions could point out some directions for other courts in a way and even supply a gap for the statute laws, the resulting outcomes are different vastly among cases, which affect the judicial consistency and authority.The article takes the form of case study, employs such methods as inducement, comparison and analysis, and concludes that we should raise the sacrifice right as a legal right on the basis of theory, legislature and judicial practices. The whole article divides three parts: introduction, text, and conclusion.The introduction mostly presents the concept of sacrifice right, points out that relevant disputes are issues with complexity and comprehensiveness so they are worth studying.The text consists of four parts:The first part introduces a representative, real case in relation to dispute of sacrifice right, which includes the parties involved, litigant claims, the accuser's plaint and the defendant's allegation, and the justifications and contents of the judgment. The main points of the case are defined firstly, that is, dispute of personal right; then the details are analyzed; lastly, the foci of dispute are brought forward and discussed.The second deals with the controversial natures of sacrifice right. There are some different positions, such as"sacrifice right is a generalized right","sacrifice is a certain custom", and"sacrifice is a special right". We assert that sacrifice right is a part of conventions that are sustained by Chinese traditional culture and heritage, and there has legal room to upgrade it as a legal right.The third comments on the provisions involved in legislative and judicatory practices. We attach importance to the legal applicability and legal protection approaches of sacrifice right. Its protection can be applied other rights, such as the right of ownership and the right of reputation, but this is a kind of indirect protection and has some defects: depending on concrete situation, short of theoretical accounts, and without thoroughness. The alternative is to apply the principle of public order and good custom. The last part shows our opinions about this case, and argues that raising the sacrifice right as a substantive right is a normalized approach to its legal protection.The conclusion summarizes the foci of the case's dispute.
Keywords/Search Tags:Sacrifice Right, Custom, Right, Public Order and Good Custom, Legal Protection
PDF Full Text Request
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