An Empirical Analysis Of The Judicial Generation Of The Right Of Sacrifice

Memorial activities are often closely related to traditional ceremonial culture,and their purpose is usually to express the feelings of mourning for the deceased.The right of sacrificing is a new right derived from the combination of the value inheritance of such activities accumulated over thousands of years and the consciousness of public rights.Since the right of sacrificing has not been clearly stipulated by law,it is impossible to seek judicial relief in the mode confirmed by legislation,so we can only identify the "legitimate interests" through the trial of individual cases in judicial practice and obtain legal protection,that is,the judicial generation of the right of sacrificing.In the process of its judicial formation,there are many problems: how to define the right of sacrificing;Whether the interests of sacrifice are worthy of legal protection;In practice,whether and how many cases are rejected by judges or rejected by judges after acceptance,and on what grounds are the above decisions made;Is it reasonable for the judge to accept the case on the grounds of satisfying "prosecution requirements" in the current system?What kind of influence will be exerted on the parties when judges choose to apply different judgment basis,legal method and relief method through their own value judgment and interest measurement;Whether the implementation of civil code will lead to new understanding and application.Many problems have not been solved,resulting in serious judicial chaos.This paper aims at an empirical analysis of the judicial generation of the right of sacrificing,and discusses the obstacles in obtaining judicial relief of the right of sacrificing and the corresponding solutions through four parts: The first part firstly clarifies the basic problems of the right of sacrificing,namely the connotation,specific meaning and the forms of expression of different subjects.Then it focuses on the identification of the nature of the right of sacrificing,proving that the right of sacrificing has the legitimacy of rights and the necessity of legal protection,thus belonging to the "other personality interests" stipulated in the Civil Code.The second part is an empirical analysis of 516 civil judgment documents in the retrieval sample,focusing on the status quo of the acceptance of cases and the reasons behind it,and analyzing the internal causes of the inconsistency of judgment scale;The third part mainly studies the malpractice of the present acceptance system of the right of sacrificing,focuses on the analysis of the improper "prosecution requirements",and puts forward the idea of constructing the corresponding procedure filtering mechanism.The fourth part discusses the referee methods used by the generation of reaction right,combed the Anglo-American and continental law system and the theoretical achievements of generated for justice in China,emphatically discusses the judge when handling disputes of the right of sacrificing by use of different judge method,and analysis of different methods on the memorial to the actual benefit,to provide theoretical reference for unified judge standard.Finally,it summarizes the empirical analysis of the right of sacrificing,that is,the right of sacrificing is a legitimate right worthy of legal protection,and is "other personality interests" regulated by the personality of civil Code like Finalize the design right.The current procedure law needs to distinguish the requirements of prosecution from those of litigation,and build a procedure filtering mechanism between acceptance and trial system.In the judicial generation of the right of sacrificing,the court should use appropriate judgment techniques to ensure the legitimate rights and interests of the people who benefit from the sacrifice.