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Conflict and Choice of Civil Rights

Author: YangYue
Tutor: ZhaoXinHua
School: Jilin University
Course: Civil and Commercial Law
Keywords: rights conflict conflict rules capital first lightweight protection
CLC: D923
Type: Master's thesis
Year: 2008
Downloads: 105
Quote: 0
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Abstract


This paper consists of five parts. Part one, the preface, dwells on the theoretic as well as practical significance of the thesis of the conflicts and choice of civil rights from the perspective of the relationship between them, concurrence, differentiation and conflict. This thesis is fundamental and has its due impact on the realization of the goal of civil law to really care about people. The present state of affairs concerning this thesis is that scholars are yet to be conscious of the conflicts of civil rights, they lack necessary theoretic care for it and their studies on it is scattered, fragmented and unsystematic. Efforts have also been made in this part to elaborate the train of thoughts, the background, the research method and the purpose of this paper. Rules for the resolution of conflicts between civil rights are dwelled on and the principle of“the priority of capital”has been tentatively proposed with a view to making this topic a focus of relevant researches.Part two starts from some concrete examples and the concept and characteristics of the conflict between civil rights have been concisely analyzed. It is held that the conflict between civil rights refers to the fact that there are more than one legally valid civil rights on the same object and they mutually contradictory, exclusive and inimical.With the above definition as a basis, a series of questions concerning the conflict between civil rights have been explored and it is believed that the conflict exists on two dimensions, namely, the claim and the exertion of these rights. In essence, it is the conflict of the interests of different subjects of rights, a consequence of the defects in the adjustment of interests by law. The richness of economic life and the development of law are the fundamental reasons for the conflict between civil rights and the further fuse of the Anglo-American law system and the continental law system is another important factor contributing to the arise of the conflict. Flaws in legislation is still another cause on this respect.There are two basic ways for the resolution of conflicts between civil rights: the institutional resolution of conflicts and the resolution of conflicts case by case. The institutional resolution of the conflicts accords to the future trend of development.Part three focuses on the principles for the resolution of conflicts of civil rights and a comprehensive survey of conflicts of rights has also been done. Legislators should employ the justice affirmed by law to give preferential protection for rights that have more value and to give certain redress for rights that are not protected, hence reasonable resolution of conflicts of rights. In other words,“capital”(i.e. value that is carried by particular rights) behind rights determine the degree of priority of rights and in the conflicts of rights, law should choose to protect those with more capital.In order to present intellectual support for the priority of capital in the protection of rights, several types of conflicts of rights are selected to provide a relatively complete picture for the conflicts of rights.The conflicts of civil rights comprise: 1. conflict between real rights. The civil rights to one object, conflict naturally, when entitled to different subjects, only one in which could be enforced, or which could be enforced in turn, or which compromise to one another.Which right could be enforced, how the enforcing order should be managed or in what situation the rights are mutually restrained in conflicting circumstance, we need a set of rules.Part four:The article try to seek the rules by such approaches: First,‘capital first’principle may solve rights conflicts effectively-----in conflicting rights, laws should choose the rights which carry more values to protect preferentially. And laws equally protect rights with same value. Second, a few examples are taken to be analyzed as proof that‘capital first’principle works. Last, considering that rights conflicts in nature is that of interest, the article introduces‘interest balance’theory and‘law-economic’analytic methods to discuss legislators should choose the rights that should be preferentially protected after balancing the interests of rights subjects, comparing systematic cost spent in choosing different rights. That intends to prove‘capital first’principle theoretically and further enriches it.Part five:As a principle,‘capital first’itself could not specifically solve all rights conflicts, the article puts forward universal rules to solve them. Furthermore, it intends, in course of explicating civil rights conflicts, to reiterate the methodological importance of regulation relations, logical judgments and non-logical judgments.

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