Study On The Application Of Public Order And Good Customs In The Dispute Of Funeral Interests

With the awakening of the people's awareness of rights,the appeal for the protection of new rights has been increasing,and the funeral disputes caused by infringement of funeral interests have attracted more and more attention of the society.However,the law of our country has not yet stipulated the right of funeral.In practice,the principle of public order and good customs is usually used as the basis for settling disputes.Because of the abstraction of funeral interests and the uncertainty of the principle of public order and good customs,judges are prone to cause disputes in dealing with such cases,affecting judicial authority.Therefore,the application of the principle of public order and good customs in memorial disputes needs to be standardized.This paper takes the application of the principle of public order and good custom in the funeral disputes as the research object.The first part explains the theoretical basis of the application of the principle of public order and good custom in the protection of funeral interests from the academic level.It emphasizes that the funeral interests should be protected by law,and points out that the principle of public order and good custom is indispensable in the protection of funeral interests.The second part,based on the current situation of judicial adjudication,combs the typical types of funeral disputes in China,including the main types of funeral disputes between close relatives and those between non-close relatives.The third part focuses on the analysis of the non-standard problems of applying the principle in the case of memorial disputes,which are manifested in the different judgments in the same case,the non-standard reasoning in the judgment documents,and the confusion between public order and good custom.Then the causes of the problem are analyzed,including the abstraction of funeral interests,the uncertainty of public order and good customs,and the criteria for determining torts by applying the principle of public order and good customs need to be standardized.The purpose of this paper is to put forward the specific operation path of the application of the principle of public order and good custom in the funeral disputes.The fourth part,aiming at the problems in judicial adjudication,first clarifies the judgment criteria of funeral interest,then analyses the applicable criteria of public order and good custom,finally puts forward the standardized protection system for funeral interest,and comprehensively analyses the identification criteria of tort and tort liability The way of assuming responsibility,pointed out that the judiciary should coordinate the legal and social functions,not put the cart before the horse,in order to achieve the judicial protection of memorial interests.