祭祀权侵权类型化实证研究

An Empirical Study on Infringement Types to the Right to Hold a Memorial Service for the Deceased

祭祀权虽非法定权利,但是,我国的法院大都借鉴一般人格权理论,将其视为人格权,并基于各种缘由判决支持祭祀权的主张。纵观司法裁判可知,祭祀权实质上是基于我国传统习俗而产生的一种民间权利,体现着我国社会的传统孝道。内涵包括对逝者去世事实的知情权,对遗体、骨灰的占有处置权,以符合公序良俗的方式安葬逝者的权利,保持逝者坟墓完整的权利,在墓碑上署名的权利,对逝者进行悼念的权利等。

Although the right to hold a memorial service for the deceased is not a legal right,most of the courts in China regard it as a personality right by referring to the theory of general personality rights and make judgments to support the claim for the right on various grounds.Our study on the judicial judgments has revealed that,the right to hold a memorial service to the deceased is essentially a kind of civil right based on China’s traditional customs,embodying the traditional filial piety in China’s society.Its connotation includes the right to be informed of the death of the deceased,the right to possess and dispose of the remains and ashes,the right to bury the deceased in a manner conform to public order and good customs,the right to maintain the integrity of the deceased’s grave,the right to have a name on the tombstone,and the right to mourn the deceased,etc.