The Qualitative And Normative Choice Of The Issue Of "Right Of Sacrifice" In Current Law

In recent years,more and more cases have been brought to court due to memorial disputes,however,due to the lack of the specific provisions of the "right to sacrifice" under the current law system,the academic circle has not formed a unified and exact consensus on its concept,nature,legal relationship and application of law,which leads to the realistic dilemma that can't be neglected in the practice of judicial adjudication.One is the dilemma of qualitative,the other one is the dilemma of the standard choice in the dispute.This paper puts forward the concept of "memorial right" under the current law system,and defines it as the spiritual interest of the deceased's relatives and expresses the thoughts and affection of the departed loved ones.In addition,this paper attempts to further explore the nature of the right to pay homage,and believes that in the existing three doctrines,"the right generalization said" it is not conducive to the right to pay tribute "the process of recognition of the rights to solve the urgent social problems," identity right "to break through the relativity of identity rights and difficult to negotiate,so I agree with the" general personality right to say,the author thinks that the right of sacrifice should belong to the category of the general personality right,and the specific identity relation is not the precondition of the "right of sacrifice",but only a restriction on the content of the right of "memorial right",that is,the content of the right is centered around the person with the specific identity.In the author's opinion,to study the issue of "the right of Sacrifice",the study of subject,object and content of the legal relation is very important,and we should make a case study on the existing cases according to the practice of referee to get the answerof the above questions.Because the object of the legal relationship of "memorial right" is clearer,generally speaking,refers to the spiritual interests related to festivals,and the more controversial and research value is the "right to sacrifice" the subject and content of the determination,so the study focused on the "right to sacrifice" the right subject and the content of the determination of rights.The author thinks that the scope of the right subject of the legal relation of "memorial right" should be limited to the close relatives in civil law.On the subject of the right the article also tries to discuss several special problems,one,this article holds that under the general circumstances,the daughter-in-law,the son-in-law should not act as "the memorial right" legal relation's right main body,but the widowed daughter-in-law,the son-in-law father-in-law,the mother-in-law,Having done the primary maintenance obligation,because it suffers from the same mental anguish as the close relative and cannot claim the "right of sacrifice" by his or her spouse,therefore,it can be regarded as the right subject of the legal relation of "the right to sacrifice";Secondly,the author thinks that the adoptive relationship between the adoptive parents and the foster parent should be protected by law,so it should be the right subject of the legal relationship of "memorial rights".There is an inability to cut off the kinship between the child and the parent,even if the law eliminates the right and obligation relationship between a child and a parent in relation to property such as inheritance and maintenance for the purposes of maintaining an adoptive relationship,it eliminates the right of the parent to act as the subject of the legal relationship between the child and the birth parents,Not only is it not conducive to the maintenance of adoptive relations,but also to the moral,therefore,whether the maintenance relationship between the adoptive children and the parents should be the right subject of the legal relation of "the right to pay a sacrifice";Thirdly,this paper holds that there is no need to exclude each other's rights and obligations between children and their parents,so they should be able to each other.The right subject of the legal relationship of the right to pay homage,but only after the formation of the relationship between the secondary children and the secondary parents because they have formed similar to the biological parents of children as inseparable from each other as a "memorial rights" legal relationship between the right subject.On the right content of the legal relation of "the right of Sacrifice",this article sums it up into six categories by combining the referee practice,in order to keep the deceased's remains,ashes,tombstones and other memorial related things intact right,the second for the right tobury the deceased in time,three to know and participate in the burial ceremony of the right,four for the memorial,worship the deceased's rights,To engrave the name on the tombstone of the deceased,to indicate the right of identity,and to ensure the proper disposal of the remains.On the question of the normative choice in the memorial dispute,the author makes an inductive analysis of the existing four kinds of standard selection paths,and considers that the reference to the default and the custody related provisions in the contract law can be used as the basis of the judgment,while the definite and specific clauses may be invoked and the definition of "right Because it is only applicable to cases in which contracts exist and cannot claim compensation for mental damages,and in the Limitation of action,the determination of the amount of compensation can not become a solution to the dispute;invoking the general rules of civil law,the provisions of good and bad customs as the basis of the referee can avoid the "right to sacrifice" qualitative difficulties,but to judge too much discretion space,Make the referee difficult and easy to cause the abuse of the principle of loopholes in the rules;invoking the clause of protection of general legal interests as the basis of judgment may comprehensively cover the plaintiff's lawsuit request,but it is unavoidable to be confronted with the dilemma of clearly defining the "right to pay homage" and the difficulty of referee reasoning;invoking the interpretation of liability for moral damage As a judgment basis,although it is a good prescription in a particular case,it can only be applied to cases where there is a violation of the facts of a particular commemorative object with a personal symbolic meaning and can only be used as a reprieve for a particular case.Therefore,in accordance with the author's humble opinion,under the current law framework,in the face of memorial disputes,if there is a case of infringement of the character of a specific commemorative items of the facts,it is advisable to directly invoke the "moral Damage Liability Interpretation 3rd,4th and the" Tort Liability Act 2nd of the referee And for other cases that do not have a specific commemorative object of personal symbolic significance,the article refers to the protection of general legal interests in article 2nd of the Tort Liability Act,and judges the reasoning argument that "the right to sacrifice" belongs to "civil rights and interests".At the same time,the author holds that,before the "right to sacrifice"becomes a legal right,or can be published by the Supreme People's Court provisional guidance case,the "right to pay homage" belongs to the "civil rights and interests" of a kind of this point of view to demonstrate that the lower courts can invoke thesupreme At the same time,it reduces the reasoning difficulty of the lower court,and it is of great practical significance to settle the cases of memorial disputes.