It is better to read strange books than flowers. This article is not only beautiful in form, but also includes six famous works: The Struggle of Rights, The Death of Contract, The Regeneration of Contract, People in Private Law, The Role of Private Person in the Realization of Law, and Trust Interest in Contract Damage Compensation. The power of classics is eternal, and a variety of classics are combined in one furnace, which is really "too strong to melt." I can't help admiring my friend's level. Because this article is not as boring as the law book I imagined, on the contrary, I am deeply impressed by the master's meticulous writing, profound reasoning, surging passion and rigorous logic. In a word, the subtlety of the hidden words and sentences in this article makes people relaxed and happy, and there is no pain in studying it; Its strict logic and profound legal analysis make people wake up and have an epiphany.
To be honest, when I first read this article, I felt that "fighting for rights" was more like an empty concept or slogan. Although it is exciting, it is idealistic after all, like a skeleton without flesh and blood. As Ye Lin said, it was only after the manager did something that I really realized how exciting and heavy the word "fight for rights" was.
For a simple example, I remember watching the news that a man spent more than 20,000 yuan on a subway ticket dispute over 2 yuan money, and finally won a double fine of 4 yuan. At that time, I just thought this man was sick. However, after reading the book Struggle for Rights, I understand the significance of his behavior: his behavior is not only confined to an impulsive person (litigation lawyer) who tends to the other side even though he actually has to pay a high price, but is rooted in his injured legal feelings. The litigation and struggle here is no longer a purely interest calculation problem, but an ethical pain caused by illegal infringement. "The plaintiff's purpose of filing a lawsuit to protect his rights from despicable contempt is not a trivial subject matter, but an ideal purpose of advocating personality itself and its legal feelings. Compared with this purpose, all the sacrifices and pains brought by litigation are insignificant to the obligee-the means of purpose compensation. " I really understand why Ye Lin put "intolerance of lawlessness" before "not doing lawlessness". Through comparison, I can contact people's general compromise to evil forces, "excusable" to corruption, and powerless to anger. I can't help but sigh that our national character is weak, and I hope more people like him will stubbornly adhere to the principle and demand an explanation. However, sometimes, as an incredibly stubborn client of the cotton team, I have to wonder whether to draw a clear line for "fighting for rights", at least in line with the existing reasonable laws, enough is enough, so as not to be in vain. Because sometimes, giving up rights properly may bring better consequences.
People's appreciation of Struggle for Rights seems to be limited to the proposition of "Struggle for Rights", as well as the discussion of legal feelings and law enforcers, rather than the criticism of German legal defects at that time. In my opinion, this is the part that benefits me the most. If Ye Lin used to fire at a lower-level infringer for the obligee, then in the sixth chapter of this book, The Struggle between Modern Roman Law and Rights, Ye Lin criticized the existing law and strongly criticized its two fundamental mistakes. This kind of criticism is undoubtedly of the most practical significance, because the mistakes and defects in legislation will undoubtedly bring more universal and fatal harm to rights, and the struggle against evil laws is an advanced form of "fighting for rights" and more fundamental. "The right of the state is to protect the rights of the people. Now that people's rights and feelings are violated by state power, people will give up legal channels. This is inevitable! "
For example, equating illegality with lack of consent in evidence. One of the requirements of evidence is legality. China's judicial interpretation stipulates that evidence obtained by illegal audio and video recording without the consent of the other party cannot be used. Here, "illegal" and "without consent" are equated, and as long as there is no consent, it is considered illegal. But the question is, why is it illegal without consent? Except for a few cases of invasion of privacy, it is not illegal for creditors to confirm the existence of creditor's rights by audio and video recording without consent, and it can also prove the facts of the case. Why can't it be used as evidence? If in the past, the law tilted the balance of the law in order to protect the weak debtors, then let's reflect, in the modern China society of credit crisis, which is the creditor or the debtor in the advantage? It can be seen clearly from the sentence "Uncle borrows money, grandson asks for money": Now Yang Bailao has turned over as the master, and Huang Shiren has become an amazing wretch after borrowing money. Therefore, in today's superior position of creditor's rights, how to strengthen the protection of creditors has become the focus of legislation, as can be seen from the provisions of the Contract Law on creditors' subrogation and cancellation rights. The procedural law insists on the legislation of "illegal = without consent", which is not conducive to protecting creditors. If strict creditors don't write IOUs when lending money, and they can't prove it by telephone recording afterwards, and they can't get the protection of the court, it is really a disaster for creditors and a fluke for debtors. Such a provision is an abuse of the debtor's tolerance and a blatant disregard for the interests of creditors, which will make the debtor lose confidence in the law and turn to self-help and lead to crime. I have heard of a case in which a creditor was arrested because his private record was not accepted by the court and his debt collection failed. In a rage, he hired triad members to kidnap the debtor and forced him to write an iou, so he was jailed. We can't just blame the debtor's weak legal consciousness here. It seems that the law itself should also examine whether it is too partial to debtors and too harsh to creditors. In addition, some scholars pointed out that this equation also violates international practice and is a misunderstanding of the "exclusionary rule of illegal evidence". This rule usually only applies to criminal trials, not to the preservation of private evidence in civil proceedings. In the west, as long as the act of keeping evidence without permission does not constitute a crime, the obtained evidence can be used even if there are illegal factors. In civil litigation, the principle of "whoever advocates gives evidence" is adopted. If the audio and video recordings made privately by citizens are not recognized as evidence, it directly limits the resources for the parties to provide evidence and reduces the rights of the parties to preserve evidence, so many facts cannot be proved and the interests of creditors cannot be protected.
For another example, there is little research on the applicable rules of indirect evidence in China's civil procedure law, which is often used in practice. The application rules of opinion evidence in civil litigation should not be as strict as in criminal litigation, and there is no need to form an uninterrupted chain of evidence, but to what extent should it be proved? How should the main evidence rule be applied? There is no doubt about it. This just proves that the lack of theory to guide judicial practice in the study of civil procedure law is a bad phenomenon. In addition, in order to strengthen the protection of creditors, it is necessary to further study and improve the application of indirect disproof, the reasonable sharing of burden of proof, the procedure of property preservation, the creditor's right of subrogation and cancellation.
Therefore, it is precisely because of this that we should learn to use the law and dare to "fight for rights". I believe that as long as each of us has this belief, our laws will be more perfect and our country will be stronger!
1872 March 1 1 Professor Ye Lin gave a speech entitled "Struggle for Rights" at the Vienna Law Society, which was later written into a short story. Just like the title of this book, the author calls on each of us to fight for rights. He advocates that struggle is the cause of legal rights. This book is not only of far-reaching significance to legal persons and non-legal persons, but also worth reading carefully by each of us.
Struggle is not a stranger to legal power, but a means of legal power. All legal rights must be won from those who oppose it through struggle. After people's unremitting struggle, the law in human history has gone through the process from slavery law to feudal law to capitalist law and socialist law. The author thinks that "the law is Satan who devours his children, and only by breaking with his past can the law make him young". Indeed, the development and evolution of law in human history can not be separated from struggle and competition, but also from violent and bloody scenes. The author compares the birth of law to the birth of a person, usually accompanied by severe pain. Some people think that when we fight for rights, we should consider whether it is worthwhile or not, which is purely a matter of interest. In the author's opinion, interest is not the only factor that should be considered. If interest is the only factor, then people will not do it if it is unprofitable or the cost of fighting is higher than the cost of fighting. But in fact, we know that this is a very narrow statement. There is such a news on the Internet: When a 2.5 yuan-worth train ticket is refunded to the train station the day before the use date, the train station charges 2 yuan a refund fee. Because she thought that the refund fee charged by the railway station did not meet the relevant national regulations, La Cheng Lin, a junior in northwest university of politics and law, took the passenger transport company of Xi Railway Branch of Shaanxi Province to court, demanding the other party to return the overcharged refund fee 1.5 yuan. Perhaps there are many such examples, but I don't want to list them one by one. I just want to illustrate through examples that interest is not the only factor that should be considered in a person's rights struggle. In my opinion, the dispute over rights has risen to the issue of personality, that is, the dispute over rights is the obligation of the obligee to himself. And the author also thinks that rights are the obligation of moral self-maintenance-completely giving up this obligation is moral suicide. In my opinion, it is really our duty to fight for our rights. If we don't want to fight for our rights, especially when we are violated by state organs, if we don't resist, it is more likely that there will be no human rights. In reality, we can see that our obligees have insufficient awareness of protecting their rights and will not resist when they are infringed by state organs. In their minds, there is a misconception that they can never win the fight against officials. Imagine that if each of us is unwilling to fight for rights and just adopts an indifferent attitude, then I am sure that one day, our rulers will become more autocratic. At this time, if we want to claim rights, it will become an endless discussion. The author compares giving up personal rights to someone running away on the battlefield. When most people fight, someone's escape may not have an impact on the war situation, but when more and more people are unwilling to fight, the situation will get worse and worse, and the burden of resistance will fall on the rest. Such a war is doomed to failure in the end. Similarly, the struggle for rights is also a struggle for unity. We can't give up our rights, encourage the enemy's courage and arrogance and enhance their strength, because that will make our burden heavier and heavier. Just like this, the author thinks that the obligee's claim to rights is also an obligation to the collective. It is an obligation and mission for the obligee to exercise and realize his rights, but if it is not realized, he will give up not only his own interests, but the interests of the whole body.
The country can go to war for a square kilometer of land. It is not enough to weigh it from the perspective of interests. The devastation brought by the war and all kinds of injuries brought to the people are by no means unbearable for a square kilometer of land, but we will still resist for our sovereignty and dignity. This truth is that people fight for the same rights. But in fact, the road to realizing our rights is bumpy. Such as the right to petition, the right to vote and be elected, the right to freedom of speech, the right to know and other civil rights. The Ding Yuan incident fully shows that our petitioners have been deprived of the opportunity to even complain about their rights. Although an Ding Yuan was finally brought down, I think the downfall of an An Ding Yuan has no meaning to our petitioners' right to appeal, because behind it, there are countless black institutions that arrest petitioners like a Ding Yuan. Speaking of the right to vote and stand for election, perhaps this is the political right that is most closely related to the broad masses of the people, but in practice, it is tantamount to a dead letter. Not long ago, I saw a news that Liu Ping, a female migrant worker from Jiangxi Province, was rejected for running for the National People's Congress. At first, according to the law, she was eligible to stand for election, but later, both her supporters and Liu Ping were interviewed. Later, she said that Liu Ping was not eligible to stand for election because there were not enough supporters. Finally, it was even considered by the relevant departments that the incident was controlled by foreign anti-China forces. We can't help but sigh, where is our democracy, and where is the right to vote in the Constitution and the electoral law? This just shows that our grass-roots workers can't get real protection in the right to vote and stand for election, but just keep their rights on paper. Let me start with the right to freedom of speech. I once saw a picture of a pair of invisible hands, one covering the reporter and the other covering the lawyer. We know that these two occupations are very important in a country ruled by law. But in fact, our reporter was gagged and speechless, and our lawyer was even accused. Finally, talk about the right to know. Undoubtedly, service-oriented government should make government information public, so that our public has the right to know. It is unbearable that CNOOC has concealed many oil spills, and even more ridiculous is to argue that it has never been subjectively concealed. The recent Wenzhou bullet train rear-end collision, without giving the cause of the accident, argued that the car body was buried to save people better. Not only that, but also blamed the accident on Lei Gong. In the blind pursuit of high development, regardless of the safety of ordinary people, life is so cheap, even our public is deprived of the right to know. These specific rights are closely related to the economic, political and cultural life of the public in China. Why can our country use one square kilometer of land to fight against foreign countries and deprive us of the possibility of fighting for our rights? In a country where officials guard against each other and bureaucracy is strong, "only state officials are allowed to set fires, and people are not allowed to light lamps" can be said to be done incisively and vividly. However, we know that we can't indulge ourselves to give up our rights, because this is also our obligation. Although a small strength may not be enough to change the whole ending, in the process of one effort, we will certainly be able to infect more people to improve their self-protection awareness. Every small step of creativity has profound significance. It is not difficult to imagine that when our public rights are better implemented, our country will become more courageous, which is reflected in the premise that our public believes in our country.