The Study Of Civil Relief On Memorial Right

Since the first dispute case of “memorial right” appeared in Beijing in2001, courts allChina have accepted dozens of such kind of cases, and showing that the number is increasingin the trend of form complex. In our existing civil law system, the right of memorial is notclearly stipulated, but it should be the legitimate civil interests protected by law. There aredifferent value judgments in the treatment to the “right of memorial” from judges, then thereis a big controversy in the judicial practice, because there is no clear law basis when such caseappears, it causes differ materially referee results of similar cases which affect the judicialauthority and unity.Memorial events is one important part of traditional folk customs existed in our longhistory. The spiritual interests and traditional moral values are the same, although theprocedures and expressions of memorial events showed distinct characteristics in differenttimes and different regions. For the purpose of the better protection of the right of memorial,it is necessary to establish legally the right of memorial.This paper is divided into four main parts:The first part: the concept definition of the right of memorial. In this one, the authoridentified that the right of memorial should be belong to the category of civil protectionthrough the analysis of the civil rights and interests in the existing legal system, at the sametime, the author has discriminated the three similar words: memorial/sacrifice and mourn,taken into account of the public acceptance of memorial right in practice, and matched theview the author advocates in this article, this article still adopts the expression of memorialright.The second part: the nature and the content of right of memorial right. In this section, theauthor analyzed and responded the “Right generalization” Doctrine with the stand of changeand development, advocated the necessity that the memorial right should be established andlegislated so as to the protection of the memorial right normally through the historical analysis/comparative analysis and empirical analysis of the memorial right. The part is the emphasisand difficulty of this article as the author has analyzed and classified the right characteristics like the right subject/right content/right object.The third part: the type of analysis on infringement of memorial right. In this section, theauthor worked hard to analyze the infringements of the memorial right in order to make itclear to determine and deal with it. This is also one emphasis part in this article.The last one: the civil remedy approach of “memorial right”. The purpose to research andanalyze the “memorial right” is, finally, to implement the protection of it. Through theanalysis above, combined with our existing legal protection system, we could relieve the“memorial right” not only by “the public order and morals” from Civil Law, but also throughthe specific laws like Tort Liability Act/Contract Law.