Research On The Certification Standards Of Emerging Rights

The development of rights theory in our country is becoming more and more vigorous,and the discussion of emerging rights has become a hot topic of rights in this era.The research on emerging rights has lasted for a long time in our country.With the deepening and development of the theory,the bottleneck of the current rights theory is the problem of the generalization of rights.In order to effectively solve the problem of rights generalization and further explore the significance and value of the emerging rights concept,it is necessary for us to put forward a set of systematic and operable standards for the certification of new rights.First of all,there are three related concepts to clarify: emerging rights,emerging rights certification and standards of certification.The definition of emerging rights has not yet been decided by the academic circles.Therefore,this paper does not do much research on the definition of emerging rights,but only elaborates on two obvious problems existing in many definitions of "emerging rights".These two issues are: the nature and orientation of "right" in emerging rights,and the disputes about different terms of "emerging rights".Regarding the former,this paper argues that "right" in "emerging rights" should not be turned into a rash expression.It should refer to real interests or claims of interests and claims for legal protection,and it is a rights bundle composed of legal rights and due rights.The difference between emerging rights and new type of rights is literal and superficial,and their inherent characteristics are consistent.Therefore,in the follow-up discussion of this paper,these terms are not distinguished,and the term "emerging rights" is used for the sake of unity and convenience.The direct purpose of emerging rights certification is to prevent or curb the phenomenon of abuse of rights.The content of emerging rights certification should be strictly limited to the action of judging whether a specific right is a emerging right or not,mainly in the two dimensions of "rights" and "non-rights","traditional" rights and "emerging" rights.The criterion of emerging rights certification is to judge whether an interest claim put forward in the name of " emerging rights" is really a emerging right certification criterion.It is the criterion of identification and judgment of emerging rights.It is a composite criterion that combines the criterion of rights certification and the criterion of "new" rights certification.Compared with the existing research results in the field,the new standard of proof of rights described in this paper has the characteristics of compounding,practical operability,certain selectivity and internality.Secondly,on the issue of rights certification,western jurisprudence has put forward a variety of theoretical approaches,including natural rights theory,social justice rights theory and utilitarian rights theory.They can provide research directions for new rights certification,but can not be regarded as the standar of certification.At the same time,the theory of rights attribute certification of new rights is too fragmentary to be used.It can be directly borrowed for the research of new rights certification standard.Based on this,we need to go back to the origin of the study of rights and find the basis for identifying and judging new rights from the answers to the question "what is right".In these answers,the "metaphysical" answers are too macro and abstract to be used as standars.In the conclusion of empirical method research,the concept theory of rights only sums up the usage scenarios of many rights words,and can not be used as a standar to distinguish a right.Although the theory of the essence of rights reveals the essential characteristics of rights to a great extent and can be used as the standard of proof of rights,each theory of essence only reveals a part of the characteristics of rights,overemphasizes one of them and neglects other characteristics.Therefore,the answer to the question of "what is right" by the theory of composite elements can be proof of new rights to a large extent.For valid criteria or basis.Among them,the theory of five elements listed by Xia Yong,namely,interests,claims,qualifications,powers and freedoms,has strong applicability and generality.These five elements are the five indispensable elements of rights,so we can draw a general conclusion: as long as these five elements are available at the same time,a certain "right" can be proved.Based on this,after analyzing these elements one by one,the standard of interest,the standard of advocacy,the standard of value basis and the standard of public awareness are combined to form our standard of proof of rights.The standard of interest mainly includes the judgment of why the interest is and the consideration of the legitimacy of the interest,including the consideration of reality,legitimacy and harmlessness.The standard of advocacy can first judge the ways of advocacy,which include academic judgment,group appeal,litigation claim and legislative suggestion.The standard of value basis mainly judges whether a right has enough support behind it.This requires two aspects: one is the value system of informal rules,including moral system,Customary System and ethical system,the other is the law system.The purpose value includes order value,justice value,freedom value and efficiency value.On the one hand,the public cognitive standard lies in the recognition of the subject of special rights,including the subject of rights and the behavior of rights,on the other hand,it lies in the consideration of the general cognition of a certain claim of rights.Thirdly,the concept of new rights has been facing some doubts.The focus of these doubts lies in the significance of the division between the old and the new rights.This paper holds that the characteristics of the times and the function of the new and the old in the special period are the important reasons for the division of the new and the old rights.There are two objectives for the "new" standard of proof of rights,each of which puts forward different requirements for this standard.Distinguishing the old from the new is the first goal,and the criteria required under this goal should be clear;highlighting the uniqueness of rights is the second goal,and the criteria should be distinguished under this goal.The "new" standard of rights proposed by us is inherited and developed on the basis of combing and integrating the relevant theories of the existing standards.The existing theories mainly include the theory of time,the theory of new legal rights and the theory of legislative defects.Time theory refers to the time of reform and opening up in 1978,judging the old and the new of rights.Although it can differentiate the old and the new of rights to a certain extent,it is difficult to show the uniqueness of rights.Emerging legal rights theory regards whether a right is recognized by statutory law as the main criterion.Although it can really reflect the "new" of some specific rights,it limits the emerging rights to the scope of statutory rights,which is not conducive to the development of rights theory and practice,and to social development.The theory of legislative defect mainly includes three situations in practice: one is constitutional defect;the other is legal defect;and the third is regulation defect.Finally,when judging the "new" of rights,we need to screen the emerging rights with the standard of legislative defects.First,we need to judge whether the rights are expressly stipulated in substantive law,whether the expressly stipulated standards appear in the expression of "XX power" or essentially the same expression in substantive law.If there is no express provision in substantive law,then we need to judge whether there is a phase in existing law.Similar rights can replace the proposed rights to protect the relevant interests or freedoms.If none of them exists,it can be proved that the right is a "new" right.In addition,if a right is expressly stipulated in the law,it can be judged as "new" by the time node of reform and opening up,because the judgement of the degree of protection of the provisions is subjective and uncertain.Finally,there are two main ways to protect emerging rights in China’s legal practice: judicial protection and legislative protection.In judicature,the current judicial treatment of emerging rights claims often falls into a difficult balance between the protection of emerging rights and judicial modest trial position.In the theory of legal method and judicial practice,there is a great dependence on the provisions of substantive law in the treatment of specific emerging rights.Especially in judicial practice,according to whether the judiciary directly demonstrates a new right in the trial,cases of emerging rights can be divided into two types: response type and avoidance type.Whatever type of adjudication exists,the argument is single and the universality is not strong.And so on.Compared with this kind of treatment,the judge’s application of the new standard of proof of rights to adjudicate in the trial is comprehensive and convincing;standardized argument is predictable;and more in line with the judicial spirit of modest adjudication.From the legislative point of view,in order to incorporate new rights into legislation,the first problem we encounter is how to prove new rights in legal proposals.This involves the issue of how to make a "necessity statement" of the bill.This provides space for the application of the new standard of proof of rights: on the one hand,it points out the direction of proof for the sponsors;on the other hand,the public cognitive standard in the standard of proof also provides an expanding angle for the long-term promotion of public participation.