Research On Solving The Conflict Of Rights In Judicial Approaches

With the development of Chinese law, the conflict of rights has turned to be a more and more popular phenomena, which is participated during each of the progress of legal practice. Nowadays the theory of conflict of rights received more and more attention. What is the conflict of rights? The conflict of rights is a legal and social phenomenon, which is accompanied by the development of social. The conflict of rights is a realistic state that the legitimate rights of the different people can not coexist. Hiden behind the difference personal value alternative, the conflict of rights shows the conflict of real interest.The conflict of rights may not only lead to tension between rights, but also make pressure on social structure. The pressure would be a potential threat to the harmonious society. So it is necessary to design corresponding measures to solve the conflict of rights. We can solve the conflict of rights in legislative, judicial and reality approaches, but because of the legislative approaches and the realistic approaches to solve the conflict of rights exist certain defects, at the same time, the conflict of rights could eventually access to justice. So it is necessary to solve the conflict of rights in judicial approaches.To solve the conflict of rights in judicial approach, the judge need to scale the interests behind the different rights in judicial procedure. Only in this way, can the judge reactivate the content of rights and mark off the limits of rights. Scaling the interests would be the main measure to solve the conflict of rights through improving judicial thinkings and methods. In this way, to solve the conflict of rights in judicial approaches becomes possible. Scaling the interests behind the different rights in judicial procedure, the judge should follow three methods:referencing rank of rights, the principle of proportion and pursuit of maximum benefit. Referencing rank of rights firstly, the judge solve the conflict of rights in judicial approaches. However, it is not perfect to conceive rank of rights that not any conflict of rights could be solved by referencing rank of rights. In every case, the judge also need to measure the principle of proportion and pursuit of maximum benefit. This three methods could make the judge analysis rights in objectivity and neutral way, which restricting the discretionary power of judges and solving the conflict of rights better. Only in this way can we realize the maximization of the interests of both the subjects of rights and safeguard social harmony and stability.