Study On The Standard And Confirmation Of Emerging Rights

The formation process of emerging rights is also the process of continuous progress and development of our society.To study the new rights formation mechanism,we must first clarify the definition of emerging rights.The new type of right is a concept of "rights bundle",which means that there is no provision in the national substantive law,but in judicial practice,the parties appeal to the court for protection,and the court either affirms or decides,or although it is not certain,The request was formed by the general understanding,default and acceptance of society.The theory of generation of new rights and the theory of generation of general rights have both the same place and their own unique characteristics.The unique characteristics of the new type of rights are first embodied in the “new”,which includes both the “new” phenomenon and the “new” form of certain “old” rights that have been legally meaningful along with economic development and social progress.It also includes social rights claims that are only recognized by the society to a certain extent,but they have not yet been truly authoritative and institutionalized and unusual,but also include some rights violations and rights.Some of the "rights" appeals form,and according to the technological operation of institutional evolution and from the perspective of practical feasibility,it is difficult for us to regard it as a truly institutionalized emerging rights.Setting standards for emerging rights of rights is an important way to prevent the generalization of rights.The criteria for judging new types of rights should be analyzed in terms of formal and substantive standards and rights.Formal standards include the dimension of time and spatial dimension of emerging rights generation.The substantive criteria include three aspects: rights subject,rights object and rights content.The form and substantive criteria of a new type of right set out how a right can become a “new type”,but more importantly,how a request becomes a right.In this paper,the rights of forgotten have been used to prove the rights of new types of rights,and the criteria for the validity of internal and external reasons have been proposed.In particular,the inherent reasons for new rights are explained based on the principle of autonomy.Under the new rights standard,many types of "new" rights are also included,but the type of new rights should also be differentiated on the basis of respecting traditional rights.Based on this,this paper divides the new rights into customary rights,due rights,and real rights.The research on the formation mechanism of emerging rights should be carried out from two aspects: legislation and judicature.The legislative methods include direct legislative creation and legislative transformation of customary rights.The judicial approach shows the process of a new type of rights appeal to judicial confirmation.Therefore,the study of the new rights formation mechanism has important legislative and judicial significance.In legislation,the study of new rights can make up for the lack of protection of rights in the original legal system.The emergence of rights naturally becomes the driving force for the renewal and improvement of the legal system,and the renewal and improvement of the legal system will provide guarantees for the relief of rights.Judicially,the study of new rights and the development of new rights will strengthen the judicial personnel's awareness of rights and expand the legal thinking of legal practitioners,so that they can better protect the parties in dealing with difficult cases of rights recognition and rights protection.