Research On The Legislation Of Relative Identity Right In China

Identity relationship is the most common social relationship in human society which exists in all aspects of human social life.In modern times,with the collapse of the ancient patriarchal society,the past unequal and non-free identity relationship has changed significantly and the relationship between people has become more equal.The British jurist,Maine,cleverly attributes this change to the movement from "identity to contract",in the social evolution from identity to contract,the freedom of contract rise day by day,identity rights have become increasingly weak.However,contractualization can not solve all problems in the process of social development.In certain social areas,contractual relations have not been able to eliminate or replace identity relationships,especially in the field of family identity relationships.Parent-child relation,blood-relation and couple love are the morality of human relations since ancient times.To live together as husband and wife,parents and children is still the physiological and psychological needs of modern people.Therefore,no matter how social consciousness changes between identity and contract,the existence and effect of relative identity in marriage and family are always indispensable.However,it is regrettable that our country has not paid much attention to the legislation of relative identity right.As a result,China has not yet formed a systematic legal system of relative identity right.Thinking and exploring its legislation perfection in China is necessary to protect the rights and interests of natural persons.This is not retrogression in history because the modern relative identity right is adjusting and protecting the equal and free relative identity relations under the rule of characteristic socialism,which is actually a supplement and improvement to the field of marriage law in our country.It is a higher requirement for mankind to pursue substantial freedom and equality.This paper analyzes the theory and related practical issues of relative identity right through comparative analysis,historical analysis,value analysis and etc.It hopes to contribute to the construction of the legal system for the relative identity right in the future,and play a positive role in realizing the individual right of citizens,safeguarding the right and interests of relatives,protecting the family interests,and promoting the harmonious and stable development of society.The paper is divided into four parts.Part one defines the connotation and extension of the relative identity rights,and describes its evolution in China from ancient times to the present.It points out that the relative identity right has evolved from the former feudal autocratic privilege to the equal right of each individual at present.Meanwhile,with the analysis of the characteristics of modern relative identity right,it determines the basic theoretical premise of the relative identity right.Part two discusses the status of its legislation and practice in China,points out the existing problems,draws the conclusion that China's legislation of relative identity right is insufficient and the right relief is difficult,and analyzes the causes of these problems.Part three examines the legislation of relative identity right in the civil law countries and the Anglo-American law countries.Through the analysis,it summarizes the inspiration of foreign legislation for our country.Part four demonstrates the feasibility and necessity of the legislation on relative identity right,and points out that it is not only feasible but also necessary to establish the right of relative identity in China.It then proposes improving solutions to counter the problem of legislation insufficiency and rights relief difficulty in China.From the perspectives of establishing spouse right,parental right,and kinship right,it elaborates on the establishment of an institutional system for relative identity right,and puts forward suggestions for improving its legal remedy system in China,thus elaborating on its legislation perfection from the perspective of right construction and right relief.