On The Right Of Mourning

In recent years,many new cases have emerged in judicial practice,and disputes over the right of mourn have been one of them.Since the law does not stipulate the right of mourn in our country,there is a divergence in the judicial practice as to whether the right of mourn should be protected by law,and then the result of different judgments in the same case has arisen,which has aroused the attention of the academic circles.However,the study of the right of mourn in the academic circles is in many problems.There is still no consensus on the issue,so studying the right of mourn is of great significance.This article first clarifies that the right of mourn is the right person to mourn and express the inner memory of the deceased through a certain form.It is a right protected by the power of law.The nature of the right of mourn is the specific personality right.The right holder can rely on the exercise of his rights to mourn,and the unique personal interests embodied in it are more in line with the characteristics of specific personality rights.Secondly,this paper demonstrates the various elements of the legal relationship of the right of mourn,and believes that the subject of the right of mourn is a close relative and a special subject.The special subject includes three types of people: one is the person with factual adoption relationship;the other is the long-term cohabit;It is a daughter-in-law and a father-in-law.Because the degree of intimacy between a particular subject and a close relative is similar,there is a need for legal protection.The order of the exercise of the right of mourn refers to the question of how to define the priority order when the rights holders have conflicts in exercising their rights.From the outside,the close relatives of the deceased have priority,only when the close relatives of the deceased do not exist or give up their rights.Special subjects can exercise the right of mourn.From the inside,the order of the relatives can be referred to the legal inheritance order,and the special subjects are the same order,that is,the father-in-law refers to the parent's position,and the person with the factual adoption relationship,the son-in-law and the daughter-in-law refer to the child.The position of the long-term cohabit refers to the position of the spouse.When the above-mentioned people in the same position cannot reach a consensus,they are determined according to the will of the deceased,and combined with the remarks of the deceased in life.If it is difficult to judge,using a comparative method,it is most beneficial to compare which decision is most beneficial.Maintain the interests of the deceased.The object of the right of mourn is the personal interest.The right holder can express his identity,mourn and spiritual comfort by exercising the right of sacrifice,and improve the personal dignity and social evaluation of the right holder.The content of the right of mourn is centered on the issue of commemoration and is divided into the right to know the death message,the right to say goodbye,the right to decide on the funeral,the right to participate in the memorial,and the right to custodial.The right of mourn not only reflects the cultural value of "filial piety" and "rite",but also contains the spiritual value of the right holder.Therefore,the legislation should include it as the personality right in the personality right law,and construct the right of personality claim and the right to infringement.The dual relief mechanism to fully protect the right of mourn.