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Judicial Determination and the New Rights

Author: GeSongZuo
Tutor: XieZuo
School: Shandong University
Course: Legal Theory
Keywords: new rights judicial precedent presumption of rights legal loophole
CLC: D926
Type: Master's thesis
Year: 2010
Downloads: 60
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Abstract

New rights, the concept is unifying phenomenon. In a rapidly changing social life, people can prosecute an action to claim a class of new Interests and demands, which based on the original of rights. When we talk about the right, more often we talk about the legal rights, the law is a man-made rule, and a legal right is maybe an existing right, at the same time, the law does not provide the right, this right is not a non-existent. We need to be discussed why there is a right. Rights can not be regarded as merely a manifestation of the will of the framers, but rather a product of social order, which need to be established in the judicial process. A new type of claim is filed, how to enter the judicial process, how to confirm the rights themselves through the judicial process, how the judges interpret a new type of right on basis of the original system of rights, all issues are to explore in this paper. In this paper, according to domestic and foreign new justice on new rights established through judicial, drawing the results of research on domestic and foreign scholars, author tries to make further research and discussion how to establish a new legal rightThe paper is divided into three parts:Part one:Introduction. This section introduces the necessity of a new right and significance of the establishment of justice, and highlights the intention of this articlePart two:the main part. This section is divided into four parts.(1) Interpretation of the new concept of rights. This section mainly describes the nature of the new right, new right’s development, and the superiority of new types of rights established through the judiciary in comparison with the legislation(2) Theoretical background and the institutional environment of the rights of the judiciary to establish. This section focuses primarily on Anglo-American legal system and the theoretical background of case law system, as well as the past few years the civil law and common law systems integration(3) The condition of establishing the new right through the judiciary. This part has respectively two aspects:procedural and substantive condition, which explores the necessity of the interest proving to be the right, which is the necessary condition of a new type of right to enter the original system of rights.(4) The method of establishing right through judiciary. This part is the focus of the article that main discusses how Judge seeks for sources of law, interpret the law in the process of law and fill up the legal loophole. Finally, the establishment of new judicial limitations on the right made the necessary exposition.Part Three:Conclusion. In this part author gave a brief summary of some important points, and further point out the intention of this writing and important theoretical and practical significance of researching the issue.

Judicial Determination and the New Rights

Abstract

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