| Through the study of the judicial justification of emerging rights,this paper clarifies the characteristics of emerging rights and the advantages of the judicial justification of emerging rights,pointing out that the emerging rights claims should be identified and determined through judicial justification whether they should be included in the scope of protection of the legislation system by comparing overseas judicial experience and combining with China’s local practice.The process of identification and determination of judicial justification depends on legal and policy bases,the judiciary should incorporate emerging rights claims into the rights protection system using various legal interpretation methods.The basis of evidence of emerging rights includes the moral and ethical justification,the objective basis of sufficient social resources,and the realistic basis of legal conditions.The adjudicator needs to use the method of presumption of rights including legal principles,the basic spirit of law and the basic purpose of legislation to seek the coordination between different levels for emerging rights that cannot be protected by abstract legal rules.After comparing the legislative and judicial approaches to the generation of rights,we explain the legislative approach and confirm the lag and limited nature of the process of legal recognition from contingency to actuality.At the same time,it is argued that China’s ratification and case guidance system has the potential to learn from case law in the light of the experience of the judicial path.In response to the problems of the judicial path,such as the difficulties of external evidence,this paper proposes the introduction of legal interpretation methodology to supplement the possible difficulties and the problems of lack of legal basis in judicial evidence.The substantive basis of judicial proof includes the protection of fundamental rights in the constitution,the protection of legal interests in the law and the protection of interests in social public policy,while the formal basis includes the judicial interpretation of general provisions in the constitution,the filling of loopholes in specific provisions in sectoral laws and the judicial interpretation of the highest judicial organs.The basis of judicial evidence needs to be combined with specific technical methods of evidence,including textual interpretation of existing legal rights,presumption of rights based on general provisions,purposive interpretation in the context of social life,and systematic interpretation with reference to existing norms,through the comprehensive use of different types of legal interpretation methods to integrate claims into the framework of existing rights in order to better respond to the emergence of new rights claims. |
