Research On Civil Legal Protection Of Memorial Right

In 2001,the Xuanwu District of Beijing judged the first case of memorial service disputes.Since then,memorial service disputes have frequently appeared in the field of judicial judgment and public view,and more and more people claim the right to memorial service in court memorial service disputes.Faced with the sudden emergence of claims of rights,judges seem powerless in judicial adjudication,and there are many phenomena of "different judgments for the same case".Citizens’ right to memorial service is not fully protected,which runs counter to the legislative spirit of the independent compilation of personality rights in the Civil Code.In order to fully protect the right to pay homage and respond to the spirit of the Civil Code,it is necessary to unify the judgment standards and scales and strengthen the protection of the right to pay homage.In addition to the introduction and conclusion,this paper is divided into four parts:The first part is the general theory of the right of memorial service.Sacrifice was formed in the Shang Dynasties.The emergence of Confucianism in the Spring and Autumn and Warring States Periods combined sacrifice and filial piety,and eventually evolved into "moral rights" and "customary power" through the development of subsequent dynasties.Until modern times there is a tendency to develop rights into laws.It defined as the right between natural persons with close relatives to worship and mourn the deceased to realize their own spiritual interests,and explores the legitimacy of the protection of the right to pay homage through ethical and legal basis,and summarizes the right to pay homage to the deceased.subject,object,and content.The second part examines the status quo of civil judicial protection of the right to pay homage.The author conducted a full-text search on the platform of "China Judgment Documents Network" with the keywords of "right to sacrifice","right to sacrifice" and "right to mourn",and screened out a total of367 judgment documents.Through the study of cases,it is found that there are Some cases were not accepted,the nature of the memorial service right is difficult to define,and the law is applied in disorder.The third part is the cause of the dilemma of the civil judicial protection of the right to pay homage.Through the further analysis of the judicial dilemma of the judicial protection of the right of memorial service,it is found that the reasons for the dilemma of the civil judicial protection of the right of memorial service are the objective and subjective resistance to accepting memorial service disputes,the complexity of the characteristics of the right of memorial service,and the absence of normative guidance.The fourth part is the improvement of the civil legal protection of the right to pay homage.Through the analysis of the causes of the dilemma of civil law protection of the right to pay homage,the author puts forward the optimal conception of the current judiciary and future legislation: At present,in order to strengthen the guidance of judicial adjudication in judicial adjudication,first of all,we must follow the judicial adjudication principles of the right to pay homage,including the principle of respect for custom,The principle of prioritizing the wishes of the deceased,etc.,secondly,establish a judicial case database,and finally,publish guiding cases;in the future,legislation must be improved,including clarifying the types of acceptance of the right to pay homage and the nature of the right to pay homage,and finally when the right to pay homage grows At a certain stage,it will be elevated to specific personality rights.