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祭奠作为一种礼俗,自人类产生以来就存在,但就祭奠权的相关规定我们在中国的立法中找不到关于它的规定,在多数国家的立法里也很难见到它的踪影。但与祭奠有关的民事侵权诉讼却不鲜见。多数法院和法官奉行的是,只要法律没有明文规定的民事纠纷,就不敢作出裁判,因此使这些纠纷任其发展,无法得到司法裁判的裁决,受到侵害的权利无法得到司法保护。本文将通过个案分析介绍我国祭奠权受侵害的现状,并以比较研究方法为主,阐述适合我国祭奠权保护的方法。
As a kind of custom, memorial service has been existed since the emergence of human beings. However, the relevant provisions of the memorial rights can not be found in the legislation of China. It is very difficult to see the traces in the legislation of most countries. However, litigation related to torture is not uncommon. Most courts and judges are pursuing that as long as civil disputes that are not expressly provided for by law are not rewarded, the development of these disputes can not be allowed to be ruled by judicial decisions, and the infringed right can not be protected by justice. This article will introduce the current situation of the abuse of merit rights in our country through case analysis, and give priority to the comparative research methods, and elaborate the methods suitable for the protection of memorial rights in our country.