A Research On The Judicial Protection Of Emerging Rights

The appeal of emerging rights reflects the tension between the legal system and the actual needs of the society,for this kind of appeal,the academic circle mainly protects it by calling for legislation.At the same time,the way of judicial protection is gradually favored by the academic community because of its low threshold,low cost,quick response,good effect and other advantages.Although there are many studies on emerging rights in the academic world,few combine the basic theories of emerging rights with theories related to judicial judgment.After the court changes from case filing examination system to case filing registration system,the right to kiss,the right to go home more often,the right to data are pouring into the courts.Judges are often confronted with a situation in which there is no recourse.Therefore,the combination of the emerging rights theory and the theory of judicial judgment has become an important subject of the emerging rights theory.In this regard,the article first discriminates the concept of emerging rights,and then discusses the significance of protecting emerging rights through judicial path,that is,protecting legitimate interests in individual cases,promoting law to keep pace with The Times and maintaining social stability.While elaborating the significance of the judicial protection of the emerging rights,this paper discusses the metapoint of the right theory of the emerging rights,and selects the Right theory of the Israeli scholar Alon Harel as the right theory of the protection of the emerging rights.Alon Harel ’s internal and external reasons can provide strong support for emerging rights.Secondly,the paper studies three different types of rights,namely,the right to privacy,which have evolved from emerging rights to real rights,data rights,an evolving right,and the most difficult argument rights--animal rights.By studying these three rights and obtains some laws of judicial protection of emerging rights.Finally,this paper summarizes the new principles of judicial protection of rights into the principle of respecting and protecting human rights,the principle of prohibition of refusing judgment,the principle of just interest protection and the principle of free psychological proof.On the basis of the above principles,the claim of "emerging rights" is required to meet the threshold of judicial access,then the judge carries on the right theory test to this appeal,in order to screen out the right appeal for special relief,and then the judge carries on the special relief to it through the judicial technology,finally can form the perfect protection to this kind of emerging rights through the judicial interpretation.Prudence should also be exercised to prevent the generalization of rights,considering whether the present is an era in which the new rights can be redeemed,but in whatever circumstances the voice of the new rights and the prevention of the generalization should be maintained.