The Right Of Participating Sacrificial Ceremony

Since the first dispute of the right of participating sacrificial ceremony was appeared in Beijing in 2001,the right of participating sacrificial ceremony was appearing in people's view as new right.With the progress of the society,people are eager to own new right protected by law.If the new type of right want to rise to the legal right and protection,it needs to be protected by the laws of the universality,rationality and legitimacy,otherwise fall into "cycle of generalization of rights",caused judicial rampant litigation phenomenon occurred.The right of participating sacrificial ceremony belong to the growing power demand,from the perspective of traditional culture,this reflects the ethical laws and rites.Besides,the court isn't reject the disputes about sacrificial ceremony.In judicial practice in recent years,however,lots of sacrificial ceremony right disputes brought the certain problems to judges in some cases since there is no clear legal provisions,the judge by experience or arbitrary way to apply the legal principles or on other applicable civil legal rights to referee will result in different sentence.Moreover,there are even some courts isn't accepted in such cases with reason of no legal basis,that behavior caused confusion in judicial practice.In addition,the citizens through hold a memorial ceremony for remembering loved ones who have departed to express emotion is spiritual interests,through moral principles,public order and good custom and the way of analogy have not enough to protect people's rights and interests.Therefore,the right of participating sacrificial ceremony has the legitimacy of legal protection and the necessity of confirming it.The main content of the article is divided into five parts.Part I: Introduction.by analyzing the significance of the study of the right of participating sacrificial ceremony,got the shortcomings of the research on the right to worship,and provides theoretical basis for improving the civil rights system.Through analysis deeply of the memorial right from legislation present situation,the judicial status quo and the present status of academic research,we summed up the research of the memorial right mainly embodied in two aspects: one is legitimacy of legal protection the other is right attribute.At the end of the article,the author puts forward some suggestions on the protection of the right of participating sacrificial ceremony as the innovation point of this paper.Part II: The basic theory of the right of memorial.First,defined the right of participating sacrificial ceremony,analyzed it's cultural background,and discriminated the conception of " participating sacrificial ceremony ","sacrifice","mourning" and other similar concepts;Secondly,reviewed the right of the memorial right of identity,the general personality right and the independent personality right;In the end,illustrated the view aim at generalization of power is not true.Part III: The right of participating sacrificial ceremony is an independent personality right.As the basis of an independent personality right,we analyzed it's legitimacy,necessity and feasibility;also sacrificial ceremony as a special right of personality right,it's particularity mainly embodied in the identity is a property of personality right,is a strong ethical sensibility of personality right,is a both absolute and relative content of the personality right,is other rights unable to absorb the personality right and is a need be limited by the special personality right.Part IV: Comparison of the memorial right in extraterritorial,such as Germany,Japan and Taiwan,we could used experiences including applied analogy regulations to indirect protect memorial right and directly protect through the revision of relevant legal right.They provide a reference for memorial right lawmaking.Part V: Illustrated the legal protection path of the right to worship.First of all,this part based on the investigation to the path of protection the right of participating sacrificial ceremony,it is concluded that protecting the memorial right has four paths including mediation with customs,protected by public order and good custom,analogy relative principles and the revision of legal right;Secondly,analyzed the plight of the existing law to protect the right of memorial,we come up with new protection path of the memorial right;In the end,the author puts forward some suggestions on design of the legal norms of the right of participating sacrificial ceremony,including the confirmation of the right,the right to tort and the change of right.