The rights enjoyed by the deceased

1. Overview of the rights of the deceased

The rights mentioned in this article refer to the rights of citizens. Citizens' rights refer to certain rights and interests that citizens enjoy in accordance with the law. It manifests itself in the fact that citizens who enjoy rights have the right to perform certain behaviors and require others to perform corresponding behaviors, and are protected by national laws. First of all, citizens’ rights must be stipulated in the constitution and laws and thus protected by the state. Secondly, rights include both actions and omissions. That is to say, on the one hand, citizens have the right to perform certain actions themselves in accordance with the provisions of the Constitution and laws; on the other hand, citizens have the right to demand that other citizens or state agencies, social groups, enterprises and institutions do or not do certain things. This kind of behavior enables the individual to obtain certain benefits or realize certain wishes, and is protected by national laws. Citizens' rights include political, economic, cultural, social and personal rights enjoyed in accordance with the law.

The rights mentioned above refer to the situation of ordinary citizens, but for the deceased, some rights will be extinguished (suspended) with the death of the deceased, but others will be retained. Come down. These reserved rights will not be complete rights like living people, but partial rights. The dead cannot realize their rights through their own actions, but can only realize their rights through inaction or asking others to act or not act.

For example, a citizen's right to honor can be obtained through his or her own efforts, which is legally called the realization of an act. A dead person cannot obtain this right through his own efforts, but if the deceased worked hard during his lifetime, relevant organizations can posthumously grant him this right. Those who have not received it during their lifetime and have not been awarded posthumously will never have this honorary right. If the deceased had received some kind of honor during his lifetime, this right to honor did not cease with the death of the deceased, but was retained forever. This right of honor is enjoyed in a way that requires others not to infringe upon it.

2. Rights of the deceased

The rights enjoyed by the deceased are stipulated in the basic laws of our country’s constitution.

Article 38 of our country’s Constitution stipulates: “The personal dignity of citizens of the People’s Republic of China shall not be violated. It is prohibited to use any method to insult, slander, or falsely accuse citizens.” This part of the Constitution One article stipulates that the personality rights of citizens shall not be violated.

Article 302 of my country’s Criminal Law stipulates: “Whoever steals or insults a corpse shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance.” This article also stipulates the personality of the deceased in the form of basic law The right does not disappear with the death of the deceased.

The rights that the deceased still enjoys are mainly reflected in three aspects.

(1) Personal rights

Personal rights refer to civil rights that are inseparable from the citizen's person and have no direct property content. The scope of personal rights is relatively broad, generally divided into two categories: personality rights and identity rights.

1. Personal rights Personal rights refer to the civil rights that citizens must enjoy if they have legal independent personality. Personality rights mainly include: right to life and health, right to name, right to reputation, right to honor, right to portrait, right to freedom, etc.

Among the above rights, only the right to freedom is extinguished with the death of the owner.

The right to life and health is a right that cannot be reserved, because the deceased has neither life nor health. However, the deceased has the right to the integrity of his or her remains. Without special provisions of the law, one shall not arbitrarily dissect or destroy one's own remains. Otherwise, it will be considered as committing the crime of insulting corpse.

Other personality rights, such as name rights, reputation rights, honor rights and portrait rights, are not extinguished at all and can be enjoyed forever.

2. Identity rights Identity rights refer to the civil rights of citizens arising from their specific identities. It is also an important part of personal rights. The right to identity is not enjoyed by everyone. Identity rights mainly include personal rights in intellectual property rights such as copyrights, invention rights, patent rights, trademark rights, etc., as well as guardianship rights, family rights, etc.

The guardianship right in identity rights is a right that is immediately extinguished when the owner dies. Other identity rights will never be extinguished or will not be extinguished for a period of time.

Kinship relationship is the basic social relationship of human beings.

There are two types of kinship relationships. One is kinship relationships arising from blood relationships, such as father-son relationship, mother-son relationship, aunt-nephew relationship, etc. This kind of kinship relationship does not terminate with the death of the relative. It is an eternal kinship. Another kind of kinship is the kinship resulting from the conclusion of marriage, such as the relationship between mother-in-law and daughter-in-law, the relationship between aunt and sister-in-law, etc. This kinship relationship is extinguished by the death of one of the parties involved in the marriage. Our country's law stipulates that if one of the spouses dies, the marriage relationship will be terminated. It is precisely because of the end of the marriage relationship that the resulting kinship relationship also ends, that is, the end of kinship rights.

Intellectual property rights are the rights of the owner as a copyright owner, inventor, patent owner, etc. The retention time of this identity right is consistent with the country’s protection period for intellectual property rights. For example, my country's Copyright Law stipulates that the state's copyright protection period is 50 years after the author's death. my country's Patent Law stipulates that the protection period of an invention patent is 20 years. This means that the copyright owner will still enjoy the status of the copyright owner within 50 years after his death; and the owner of the invention patent will continue to enjoy this status within 20 years (from the date of legal recognition), regardless of whether the owner dies or not. One identity.

(2) The right to dispose of personal property

Citizens’ right to dispose of personal legal property is a right stipulated by law. The disposal of personal property is a unilateral personal act and does not require the consent of others (unless otherwise agreed or stipulated by law). But for the deceased, the implementation of this right is mainly reflected in the disposal of his or her inheritance.

The disposal of one's own inheritance is a very special property disposal issue. Our country has specially formulated the "Inheritance Law" to regulate this behavior. What makes it special is that the disposal of inheritance is a civil activity that can only be carried out after the death of the decedent, and the decedent declares unilateral regulations on the method of disposing of his property in the form of a will during his lifetime. This kind of unilateral declaration is an act protected by law as long as its content does not violate the provisions of the law.

(3) Right to enforce special contracts

A contract is a behavior between two parties or multiple parties. However, due to the death of one party, the contract will be unable to be actually performed and will be suspended. For example, a labor service contract may become unenforceable due to the death of the party providing the labor services.

However, there are some special contracts that are not subject to this restriction. This type of special contract is reflected in the contract between the deceased and a natural or legal person regarding the handling of his or her remains and the organization of a funeral ceremony for him or her. The prerequisite for this type of contract to take effect is the death of the deceased. The contract will not be executed unless the deceased dies. The contract can only be performed when the deceased dies. The executor of this type of contract is the deceased’s counterparty.

There are different opinions in the legal circles regarding the disposal of the deceased’s body. Because living people will not dispose of their own bodies, nor will they let others dispose of their bodies. This kind of controversy arises as to whether the remains are human beings or objects. Based on current concepts, when it comes to disposing of one's own remains, most people believe that the remains have property rights characteristics.