On The Judicial Path Of Establishing New Rights In China

The meaning of the new right is that it has gained public recognition to some extent,but has not yet formed a formal system and has not enacted the right to enter the law.According to the structure of the article,this article contains the following contents:First of all,it is the introduction of the article.This part introduces the background of this paper and makes a literature review.Then,the text of the article.It mainly includes the following four aspects:In the first part of the text,the author puts forward the problems of the legislative establishment of new rights in our country,and tries to put forward the path of judicial establishment in order to solve this problem.By comparing the path of establishing new rights legislation with that of establishing new rights judicature,it is concluded that the path of establishing new rights judicature can make up for the shortcomings of the path of establishing legislation.In the second part of the text,it first elaborates the feasibility of establishing new rights through justice in our country,and in order to better construct the judicial path of establishing new rights in our country,it draws lessons from the relevant experience of judicial establishment in the two legal systems.This part mainly elaborates the respective characteristics of the two legal systems,expounds the important path of judicial establishment as the establishment of new rights of the two legal systems,and introduces the respective legal methods of the United Kingdom and the United States,France and Germany,as well as the Enlightenment of the two legal systems to our country in establishing new rights through judicial practice.In the third part of the text,it elaborates the principles and methods of establishing a new type of right judicature in line with the national conditions.This chapter mainly discusses the substantive legitimacy of new rights,legal interpretation methods and loophole filling methods,and explores the necessary conditions for a new right claim to be interpreted by the Supreme Court and supported by grass-roots courts.Then it specifically analyses the way in which the right of privacy,the right of reputation of the deceased,the right of personal dignity of consumers and the right of virtual property are established through judicial practice.In the fourth part of the text,the article discusses the limitation of the judicial establishment path of new rights in our country,demonstrating that only new rights of civil and commercial categories and instrumental rights can be established through judicial path,and discusses the case effectiveness of judicial judgments to establish new rights and the level of effectiveness of judicial interpretation of new rights.Last,it is the conclusion of the article.This part summarizes the main point of the article.Through the study,the main content of the article is whether the new rights in our country can be judicially established,and how to establish the judiciary.Through drawing lessons from the experience of the establishment of new rights judicature in the two legal systems,this paper draws some enlightenments for the establishment of new rights judicature in China.In addition,it emphasizes that the Supreme People's Court needs to strengthen democratization and improve supervision system when formulating judicial interpretation.At the same time,the quality of judges in our country also needs to be improved,and their trial ability needs to be improved.Finally,it emphasizes that China should still take judicial restraint as the mainstream,judicial activism as the auxiliary,and prudently use judicial methods to establish new rights.The significance of this study is to enrich the theory of the establishment of new rights.Among them,it puts forward the concept of judicial establishment of new rights,and compares different judicial judgments of new rights between the two legal systems from different angles,and gets the enlightenment to our country.In addition,it clarifies the principles and methods for the establishment of judicial judgments of emerging rights in China,and analyses the limitations of judicial establishment.This paper synthetically uses literature research,comparative research and empirical research methods.Through studying the literature about new rights in recent years,we can find out the problems and find solutions on this basis;through the analysis of the new rights establishment system of the two legal systems,we can find out the feasibility of judicial establishment of new rights in our country,and draw lessons from relevant experience;through the analysis of the judicial establishment of new rights in China,we can verify the theory of this paper.