Research On The Justification Of Memorial Right

In judicial practice,there is a claim of right having commemorating and mourning as the content.The parties call it the “memorial right”,and are convinced that it is a real right.The attitude of the court is more complicated: on one hand,the “memorial right” does not have the clear attributes of legal rights,so its identity to be a right is questionable;on the other hand,many judges still tend to include such cases in the case of “personality rights”,and affirm its identity to be a right.The purpose of this article is to analyze the nature of the “memorial right”,and eventually to justify its nature of right.In the introduction part,the author concludes the existing doctrines about the nature of the “memorial right” and divides it into two categories: the rights theory and the benefit theory,and discusses the significance of distinguishing the two.In the first part of the text,the author firstly concludes the opinions on the memorial right for the existence of the judicial practice and defines its specific content and general characteristics.Then,comparing it with related personal rights and personality rights in the legal rights system,it is concluded that the “memorial right” does not belong to any specific statutory right at least.Therefore,the only way that the“memorial right” can be justified as a right is to be created as a new right.The second part,which is the core of this article,discusses whether or not the “memorial right” accords with the substantive standards of right.First of all,the author takes the benefit theory of right,and through argumentation,proves “justification” as the substantive standard for distinguishing rights from common interests.Furthermore,the author examines the justification(moral basis)of the “memorial right”: first,proceed from the content of the memorial right,the author analyzes the basis for both internal emotional and social aspects of the worship service;Then the author analyzes the relating subjects(dead's friends,close relatives,and the dead himself),finding that only the close relatives of the deceased have sufficient moral basis to make their claim of “memorial right” to be a right.In the end,it comes to the conclusion that the “memorial right” is justified both in content and in subject,and that the convergence of the two makes a solid moral basis for the memorial interests of close relatives.Therefore,the “memorial right” has the essence of moral rights.The third part of the text aims to give the formal character of the right to the right to worship that already has the essence of rights.The author believes that those just and appropriate interests that qualified to be rights must also undergo some form of transformation in order to satisfy the appearance of rights and become real rights.Therefore,the author carries out Hopfield's analysis of the specific claims arising from the judicial practice and integrates them into a unified Hopfield's system consisting of "core content" and "relevant factors" so that they have the formal characteristics of rights.In the last part,the author will return to the practice level to prove that the existing law has loopholes in the issue of memorial rights and it is necessary to supplement them through legislation;at this stage,it is possible to protect the memorial right through the general norms in the judiciary.Therefore,the memorial right is also have the nature of legal rights.