Exercise of the right to commemorate the festival and resolve disputes

Author: Zhou Yuwen, Fujian Zhouchi Law Firm

Source: House of Justice

After the death of our loved ones, we should bury and mourn them, including knowing the circumstances of the death of the deceased loved one, mourning for the remains, donating the remains, burial or burial of ashes, choosing the method and place of burial, erecting and signing the tombstones, and maintaining the integrity of the tombstones and graves, etc. In the absence of any interference or dispute with us, we consider this to be a matter of course, and few recognize that it is a right or how it is exercised. During this year's Ching Ming Festival, the author received consultation and answered two disputes between deceased relatives over memorial services, so I sorted out the questions about the right to commemorate and the handling of disputes over the right of memorial, which may be helpful for people to understand the right of worship and deal with disputes over the right of memorial.

First of all, the right to pay tribute is a personality right protected by law

It should be said that the laws of the mainland do not clearly stipulate the right to pay tribute, but after Article 989 of the Civil Code of the mainland stipulates the rights of civil subjects such as the right to life, the right to body, the right to health, the right to name, the right to name, the right to reputation, etc., the second paragraph goes on to stipulate that "in addition to the personality rights provided for in the preceding paragraph, natural persons enjoy other personality rights and interests based on personal freedom and personal dignity". Then, the right of a natural person to pay tribute to his deceased relatives is a kind of personality right based on human dignity. For example, the third paragraph of Article 1006 of the Civil Code of the People's Republic of China stipulates that the donation of the remains and human organs of a natural person is as follows: "If a natural person does not express his disagreement with the donation before his or her death, after the death of the natural person, his spouse, adult children and parents may jointly decide to donate, and the decision to donate shall be in writing." It also provides that "it is forbidden to buy or sell human cells, tissues, organs, and human remains in any form" (article 1007 of the Civil Code). It can be seen that mainland law attaches great importance to this kind of personality rights and interests that belong to the right of memorial. Since there is a clear provision in the law, it goes without saying that everyone should abide by the law. The question is that in the absence of clear provisions in the law, how to deal with disputes between the parties in the exercise of the right of memorial is what people are more concerned about and want to know, especially when there is a dispute between the parties and they cannot reach a consensus.

Second, the resolution of disputes over the right to pay homage

For example, the first paragraph of Article 1006 of the Civil Code clearly stipulates that "a person with full capacity for civil conduct has the right to decide to donate his human cells, tissues, organs and remains free of charge in accordance with the law." No organization or individual may force, deceive, or induce them to donate. The "any organization or individual" referred to here includes, of course, the close relatives of the deceased. We reason from this that if the deceased made arrangements or explained his burial place, burial method and memorial method before his death, the close relatives of the deceased should of course also do so in accordance with the deceased's arrangement when exercising the right to pay tribute, and there should be no objection to this. This is number one.

Second, in the absence of arrangements for the deceased's remains, burial methods, and locations, this is of course a matter of course for the right of remembrance exercised by his close relatives, that is, the person who has the right to commemorate has decided and exercised it. It is undoubtedly best if all parties who have the right to pay tribute agree on the same opinion, or if they do not agree but finally reach an agreement through consultation, and the burial, mourning, and memorial service are carried out according to the consensus of everyone. The important question is, what should be done if the deceased is still buried and memorialized in the event of a disagreement?

It is decided according to the distance with the deceased. Close relatives and spouses, children, parents and siblings, grandparents and maternal grandparents of the deceased as defined by mainland law. In general, after the death of the deceased, the next of kin includes a spouse, children and siblings. In the event that the spouse, children and siblings of the deceased disagree on the manner and place of burial, etc., the closer relatives should be respected, i.e., the spouse and children of the "first order" should be determined in the order of inheritance law, i.e., their opinions shall prevail.

In the event of disagreement among close relatives in the same order, the right to pay tribute shall be exercised in a manner advocated by the state or in a manner that can achieve better results. For example, in recent years, the mainland has vigorously advocated funeral reform, advocating sea burial (scattering ashes into the sea), tree burial (burying ashes under trees), deep burial and lattice storage, etc., if someone asks for tree burial or sea burial, and some ask to buy a cemetery for burial, tree burial or sea burial should be supported. Some people propose to make the funeral more beautiful, while others propose to be more frugal, and they should support the frugal funeral method, because this method is advocated by the state. For example, keeping the grave intact and digging up the grave and moving the grave can be considered as a way to exercise the right to pay tribute, but if the daughter of the deceased deceased decides to dig up her father's grave and remove his bones for DNA testing in order to recover her younger brother, who was abducted and trafficked many years ago, if the grandparents do not agree, they think that the deceased should not be tossed. Because DNA testing is an irreplaceable and effective way to recover the lost brother, the opinion of the grandparents should be subordinated and respected by the granddaughter.

In short, the right of worship is for the dead, but also for the living. When the right holder of the right of memorial involves multiple right holders, it is difficult to avoid the occurrence of disputes. After a dispute arises, the close relatives of the deceased should try their best to resolve it through negotiation, and if they cannot reach an agreement through negotiation, they can only sue the court to settle the dispute, and if the court cannot resolve it through mediation, it can only protect more important rights and rights advocated by the state.

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