The modern constitutional system is mainly composed of current organizational institutional norms and basic rights norms, but only the latter is the core of the entire constitutional value system. Among the many provisions of the Constitution, the basic rights provisions are particularly important, and their confirmation And protection is closely related to the vital interests of the people. However, its application in the private domain has been bumpy and twists and turns. It has never been accurately positioned and explained. It is obviously unable to adapt to the current situation where basic rights are frequently violated by private subjects. 1. The creation of private domain effectiveness is necessary to solve practical problems. Chapter 2 of our country’s Constitution stipulates the basic rights and obligations of citizens in the form of a special chapter. Articles 33 to 50 cover the rights to survival and development, the right to equality, etc. A broad category of basic rights and freedoms, while other articles are also covered sporadically, such as the right to private property in Article 13. Regarding the understanding of basic rights, traditional constitutional theory believes that they are a barrier for individuals to resist the public power of the state and have no legal binding force in the field of private behavior. However, with the development of the times, the traditional "citizen-state" dualistic pattern has become looser, and the number of incidents in which basic rights have been violated by third parties has gradually increased. At the same time, the awareness of citizens' rights has gradually awakened, which has given rise to the basic rights versus private rights. Real needs for domain expansion. (1) The status imbalance between private subjects leads to private infringement of the basic rights of others. The modern constitution was born in the 18th century. In the early days of its development, private social relations were relatively simple, individuals were equal, and private laws were autonomous; however, as the times progressed, freedom The competitive market economy gradually produces its negative effects such as monopoly, imperfect competition, polarization, etc., which in turn leads to an increasing imbalance in the equal status among civil subjects. Some private subjects have a large amount of social resources and can dominate other subjects. This structural change in private society is also reflected in the protection of basic rights in the Constitution. For the realization of certain basic rights in areas such as personal employment, buying and selling, and consumption, it faces more threats from third parties. In the Qi Yuling incident, known as my country’s “first judicial judicialization case of the constitution,” the defendants Chen Xiaoqi, Chen Kezheng, Jining Commercial School of Shandong Province, etc. used their social status and advantageous resources to falsely obtain the plaintiff’s notice to enroll in school and even get employment. At the same time, the functions of the state in modern society began to undergo structural changes, and private entities that assumed some public functions continued to emerge. Social groups such as workers, youth and women, industry associations such as the Lawyers Association, enterprises and institutions such as schools, and grassroots organizations such as village committees Mass autonomous organizations can assume specific administrative functions as authorized by laws and regulations, and social organizations, enterprises, institutions, and even individuals that meet legal conditions can also exercise some administrative powers when entrusted by administrative entities. It can be seen from this that in the field of private law, in addition to the basic equal status between ordinary private law subjects, private subjects who assume some public functions and control superior social resources have emerged and are gradually increasing. The status of private subjects is seriously imbalanced, which greatly increases the probability that basic rights will be infringed upon by a third party. Therefore, when we emphasize the sanctity of fundamental rights, in addition to being wary of intrusions by public power, we should also pay attention to intrusions from third parties and seek specific countermeasures, that is, the issue of the private domain application of fundamental rights. (2) The increasing awareness of people’s rights and the absence of civil rights legislation gradually create conflicts. For a country’s modernization drive, the rise of rights concepts and rights claims is an unstoppable historical necessity. This law is also reflected in our country. In the process of building the socialist rule of law, the current awareness of the rights of our people has gradually awakened and improved, thus making Chinese society enter the era of rights. Recent practice has proven that basic rights are violated by a third party, and it is also common knowledge in the academic community that relief should be provided. In judicial practice, people have a psychological dependence on the rights that can protect their legitimate interests, and this dependence has also become a psychological stereotype. All reasonable claims for interests are named in the name of rights, which has triggered many problems in our country. The emergence of emerging rights demands; among them, there are many cases involving basic constitutional rights, such as the right to equality, the right to education, freedom of marriage, etc.
Basic rights refer to rights that are vital to citizens or natural persons. Compared with those types of rights that are not defined as basic rights in the constitution, they should be protected more absolutely. To limit or deprive them, they must comply with More stringent and demanding conditions. When basic rights are infringed upon by a third party, effective relief cannot be obtained because there is no clear provision in the civil law. This will obviously become a great travesty of the basic rights provisions of the Constitution. 2. Direct effect theory and indirect effect theory for private domain application Regarding the issue of whether the basic rights provisions of the Constitution can exert legal effect in the private domain, Chinese academic circles have experienced a change from early support for direct effect to the current focus on indirect effect. In the 1980s and 1990s, the discussion on the application of the Constitution to the private domain was relatively simple. Scholars generally believed that since the Constitution was law, it had applicability. Therefore, in civil cases, the provisions of the Constitution’s basic rights could be directly cited without going through civil procedures. law. In recent years, with the influx of theoretical theories from the United States, Germany and other countries, Chinese academic circles have turned to accept the theory of indirect effect as a general theory, indicating that basic rights must act in the private domain through the intermediary of general provisions of civil law or uncertain legal concepts. Whether it is the theory of direct effect or the theory of indirect effect, they are all based on the analysis of the nature of basic rights. On the basis of adhering to the traditional characteristics of public rights or subjective rights of basic rights, scholars try to explain that they have private rights and attributes of objective rights. (1) The public-private nature and direct effect of basic rights Civil law is known as the charter of citizens’ rights, and the Constitution is the charter of citizens’ rights. Between civil rights and civil rights, some rights overlap in name, forming the so-called Cross-cutting rights, such as the right to life, property rights, personality rights, etc., have corresponding provisions in the Constitution and civil law. As for other basic rights that have not been recognized by civil legislation, some of them have also been directly applied as private rights, such as freedom of speech and freedom of association in the German Weimar Constitution, and the freedom of association in the U.S. Constitution. The prohibition of slavery and forced labor, the right to equality in the Chinese Constitution, the right to education, etc. Regarding the aforementioned confusion of names in legislation and actual confusion in judicial practice, early scholars interpreted the wrong signals and tried to demonstrate that basic rights as public law rights also have the attributes of private rights, and based on this, they proposed other The doctrine of direct effect applies to the private domain. Starting from the legal nature of the Constitution, some scholars argue that the Constitution, as the fundamental law, is the common source of public and private law. It can be said to be a comprehensive law in terms of its nature. Therefore, the basic rights protected by the Constitution are themselves public rights. Mixed with private rights, when a third party infringes upon basic rights, the People's Court can directly make judgments based on the Constitution. Some scholars, starting from the theory of the absoluteness of basic rights, argue that basic rights essentially have a value beyond positive law and are the basic principles of the overall legal order that both public and private laws must follow. Therefore, their provisions should not distinguish between public and private laws. , and some scholars directly apply to the relationship between private individuals, directly discussing the decomposition of the content of basic rights, arguing that basic rights themselves have the dual attributes of public rights and private rights. When regarded as a right in public law, it is relatively abstract. In terms of rights, it is the state, but as a right in private law, the counterparty of its rights is other social subjects. It is true that the basic rights of the Constitution have a certain private meaning and are more or less involved with the civil rights recognized by the civil law system.
Defining a certain right as a basic right in the constitution does not mean that it is no longer a right in the sense of civil law, but it does not mean that a basic right has two diametrically opposite attributes of public law rights and private law rights. , even for rights such as the right to life and the right to health, which are called by the same or similar names in the field of constitution and civil law, their meanings and specific contents are obviously different, especially for the subjects. This right in civil law is for individual claims. Yes, the counterparty to rights generally does not act in the way of performing their obligations, that is, they must not interfere or infringe in any way on the enjoyment and exercise of specific rights; while the basic rights in the constitution are directed from individuals to the state, and the latter performs its obligations in a way that With positive behaviors as the mainstay and negative behaviors as the supplement, taking the right to education as an example, public power should not only infringe upon it appropriately, but should also try its best to protect and promote its realization, such as creating necessary and good rights for citizens' learning and education in accordance with the law. The implementation of the national compulsory education system and various educational investments are manifestations of fulfilling its positive obligations. (2) The subjective and objective nature of basic rights and the theory of indirect effect. As mentioned above, the basic rights of the Constitution cannot be confused with the rights of private law. It is obviously inappropriate to interpret the basic rights of the Constitution based on the attributes of public and private rights, thus cutting off the private rights of the basic rights provisions of the Constitution. However, in the face of the increasing number of third party infringements on basic rights, we must not sit idly by and ignore it. Rights that are obvious, indestructible and inalienable and serve as the basis of every human society cannot simply be treated as nothingness in the legal relations of private law [7] (P23). When ordinary civil rights are violated by a third party, there are relevant remedies. Basic rights are so important, and the legal remedies need to be clarified. In the process of exploring the private domain effect of the basic rights clauses of the Constitution, scholars started again and re-decomposed them into subjective rights and objective value order on the basis of recognizing them as public rights, and based on this, they proposed indirect effects. explain. The theory of subjective and objective attributes of basic constitutional rights originates from German constitutional theory and practice, which means that basic rights are the subjective rights of individuals to resist the infringement of state public rights. The normative basis is Article 19, Paragraph 4, of the German Basic Law, “Anyone Any person whose rights are violated by public power can bring a lawsuit to the court." On the other hand, basic rights also have objective legal attributes, and they bind public authorities as an objective value order that the Constitution strives to maintain, as stated in Article 1 of the Basic Law. Paragraph 3 stipulates that “fundamental rights bind the legislation, administration and judiciary and are directly effective rights”. Under the theory of the dual nature of basic rights, Germany's constitutional theory and practice have constructed an exquisite, rigorous and orderly basic rights protection system, so that state power and even the entire social life are based on basic rights with human dignity as the core. be integrated. The subjective nature of basic rights is a shield, which only defends but does not attack, and cannot be extended to the field of private law. However, its attribute as an objective value order can derive indirect effects on the private field. In addition to complying with this order, the operation of public power should also All means should be taken to maintain and improve it, which also includes national legislation, judiciary and even law enforcement agencies. When faced with the fact that basic rights are infringed upon by a third party, they should provide necessary relief with the backing of public power. Compared with the "night watchman" role of public power in subjective rights, which ensures the free exercise of citizens' rights by inaction, the objective nature of basic rights clearly requires public power to go further, and it should actively promote the realization of citizens' basic rights. When its realization is blocked, which at this time mainly refers to being blocked by a third party who is also a private subject, public power should intervene to bring order out of chaos, thereby maintaining the existence of basic rights as an objective value order. 3. Affirmation of the theory of indirect effect and correct understanding of the basic rights provisions of the Constitution. The proposal of indirect effect does not subvert the traditional view that constitutional rights are mainly public law rights against the state or public power. Instead, it is based on this and emphasizes the effectiveness of basic rights. It can only be developed by guiding the specific interpretation of general clauses and uncertain concepts in private law norms. It achieves a certain balance between adhering to the public law nature of the constitution, safeguarding the autonomous status of private law, and protecting citizens' basic rights from infringement, thus providing adopted by national legislation and practice.
However, my country’s academic circles have never stopped questioning the indirect effect. For a long time, the basis for denying the private domain effect of the basic rights provisions of the Constitution has always been that the judicial application of the Constitution will inevitably trigger the interpretation of the Constitution by the People’s Court, and the right to interpret the Constitution of our country belongs exclusively to the people of the country. Congress. Among the many scholars who accept the indirect effect theory, there has also been a certain degree of misunderstanding or deviation. Scholars analyze the objective normative attributes of basic rights more from a formal sense, so their understanding of indirect effect has also stopped at on the surface. Faced with such a current situation, it is necessary for us to conduct a substantial analysis of the objective attributes and indirect effects of basic rights. The objective value order established by the basic rights clause of the Constitution requires that state agencies must ensure the realization of citizens' basic rights through various means such as politics, economy, and culture. The state agencies here naturally include the people's courts as judicial organs, and the means are also It must include legal means. In specific judicial decisions, the basic rights provisions of the Constitution should constitute the upper guiding principles for judges when interpreting the law. The main basis for the theory of indirect effect of the basic rights clauses of the Constitution is still the general clauses or flexible legal concepts in the civil law. It only explains that when civil judges judge cases, if they need to give specific explanations to the general legal clauses and abstract legal concepts in the civil law, Therefore, when deciding whether a disputed case should be included in the scope of rights and interests protected by civil law, we can rely on the guidance of the basic rights provisions of the Constitution. The Constitution is not cited as a legal authority or source, but must be considered in legal interpretation and serves as the ultimate basis for legal reasoning and legal interpretation. At this time, the objects of interpretation are general clauses or uncertain legal concepts in the civil law, not the Constitution itself. The Constitution is only used as a benchmark for interpretation, so it does not violate the current regulations that the power of interpretation of the Constitution is exclusive to the National People's Congress. In terms of legal methodology, we may call it constitutional interpretation, which uses the basis for interpretation (i.e., the text of the Constitution) to determine the object of interpretation (i.e., the meaning of departmental laws in specific cases), rather than directly determining the basis for interpretation. Interpretation is also the difference between it and constitutional interpretation [10] (P403). In the process of indirect effect, the basic rights provisions of the Constitution provide interpretive resources for the flexible legal concepts or general legal provisions of civil law, allowing judges to interpret them. The discretion is more convincing. In essence, the dominant and focus of the legal basis in case handling is still civil law. In the face of the question of the private law of the Constitution, indirect effect can be said to maintain the boundary between public and private law through the use of law. Constitutional interpretation rather than the methodology of constitutional interpretation, the indirect effect still belongs to the resolution of private law issues within the complete system of private law. When considering the basic rights clauses in our country's constitution, its wording and sentences leave room for private domain application. The text does not clearly stipulate that the Constitution is only legally binding on state institutions. Instead, it indicates in some rights clauses that third parties shall not infringe upon citizens’ basic rights. For example, with regard to freedom of religious belief, freedom of communication and confidentiality of communication, the Constitution clearly states that “any state shall Agencies, social groups and individuals" or "any organizations and individuals" shall not be infringed upon. In combination with Article 33, paragraph 3, of the Constitution, "Any citizen shall enjoy the rights stipulated in the Constitution and the law, and at the same time must perform the obligations stipulated in the Constitution and the law." It can be seen from the provisions that for other basic rights and freedoms, although the Constitution does not specify that individuals cannot infringe, it is not considered that private subjects can interfere with their enjoyment and exercise. When we examine the actual operation of the current law, we can find that in the judicial practice process. It is not uncommon for courts to use fundamental rights clauses to explain the adjudication of civil cases. Unlike criminal cases, courts are not allowed to refuse adjudication due to the lack of express provisions in the law. When litigants make claims for rights that have no basis in law, they often need to use their judicial activism to adjudicate individual cases. It is true that legal rights should be supported, but not all civil interests that have not been legislated will not be protected; When there is an interest that should be protected by law (such as the right to education), in order to effectively demonstrate why this interest is definitely protected in this case, the judge will unconsciously want to "turn" this interest into a right.
In the course of this argument, because the civil legislation did not cover this interest as a right, but the basic rights provisions of the Constitution confirmed it, the judge was about to introduce it into the Constitution, making the protection of this interest seem full. There is nothing wrong with this approach. On the contrary, it is an effective way to deal with similar problems at present. For example, in the case of Shang Mou v. Li Mou and China Property Insurance Co., Ltd. Jincheng Central Branch_, the plaintiff claimed that he was injured by the defendant Li Mou and was unable to attend school on time, resulting in the infringement of his right to education. In order to compensate for the infringement of his right to education, For this loss, a teacher was hired to teach for him, so he claimed that the defendant should compensate for his tutoring fees. In this regard, the court cited the provisions of the Constitution on citizens’ right to education to assist in interpreting the connotation of personal injury compensation, thus supporting the plaintiff’s claim. Practice brings true knowledge. When the academic community still has doubts about the indirect effectiveness of the basic rights provisions of the Constitution, in practice, the courts have answered affirmatively through individual case trials. From the perspective of empirical analysis, the existence of the theory of indirect effectiveness has become An indisputable fact. 4. The Theory of Indirect Effect and the Improvement of the Civil Rights System At any time, the legal provisions of the Constitution cannot be directly applied in civil adjudication, otherwise it will subvert its public law nature and blur the boundaries between public and private law. On the other hand, the constitution's provisions on the basic rights of citizens are usually in the nature of a declaration. They do not stipulate the specific content of a certain right or the means of redress for infringement. It also determines that it can only be exerted indirectly through the guidance of civil legislation. Potency. As mentioned above, the proposal of the private domain effect of the basic rights clauses of the Constitution is essentially the issue of how interests that have not been legislated should be protected by law with the help of the basic rights clauses of the Constitution. In order to resist the application of constitutional provisions, scholars have proposed a variety of solutions, the most typical of which are the parasitic cause of action and the presumption of rights theory. The former believes that interests that should be recognized by the law but are not explicitly protected by civil laws can be parasitic. Relevant civil rights that have been recognized by civil laws rely on the latter's rules to achieve rights protection and maintenance; while the latter advocates that based on connotation similarity, it is presumed to be rights clearly stipulated in civil legislation, and its exercise of rights is applied and relief system. Although the two have different names, they actually achieve the same goal by different means. They both solve problems by expanding the connotation of existing civil rights. However, the scope of extension of legal rights itself is limited. With the diversification of case types, the existing legal The continuous expansion of the concept will not only cause difficulties in reasoning on the basis of parasitism and presumption, but will also lead to a substantial denial of the limits of legal rights. In practice, the civil rights system continues to develop with the times. In practice, many interests that have not been recognized by legislation are finally elevated to legal rights through individual rights claims and court confirmation, and are confirmed in the process of legislative formulation and revision. . The theory of parasitic cause of action and presumption of rights was proposed to strictly adhere to the original rights system, thereby greatly reducing or even eliminating the possibility of rights gradually becoming statutory rights after being tested in practice, and this is obviously not suitable for the openness of the rights system. requirements and development needs. When basic rights are also private rights explicitly protected in civil legislation, the people's court citing the basic rights clauses of the Constitution can emphasize the fundamental significance of the right to the subject of the right and strengthen the argumentative effect; but when the basic rights are not explicitly protected in civil legislation, When it can be stated in detail, but it is necessary to rely on uncertain legal concepts or general legal provisions to fill legal loopholes, the basic rights clauses of the Constitution can play a more important role. The basic rights clauses can be used to test the legal concepts or general clauses. Constitutional interpretation can create rights and interests that are not originally recognized in the civil law in the judicial process, which can give the handling of cases a more solid legislative foundation and strong legitimacy support. The court injects the meaning of basic rights norms into abstract legal provisions through constitutional interpretation, and provides protection for citizens' basic rights through the application of law. This is theoretically self-consistent.
In the early days, scholars who opposed the private domain application of the Constitution argued that private law remedies for the right to education could be demonstrated through an expanded interpretation of Article 120 of the General Principles of Civil Law, which is the so-called parasitic theory of cause of action. However, in fact, this article does not apply to the protected objects. It is a clear enumeration, covering only the right to name, portrait, reputation, and honor. The same is true for the entire third section of "Civil Liability for Infringement" in which it is located, making it difficult to extend the scope of protection. However, after the promulgation and implementation of the Tort Liability Law, the discussion of this issue has taken on a new perspective and significance. According to the provisions of Article 2 of the Law, its coverage includes personal rights such as life rights, health rights, name rights, reputation rights, etc. , Property rights and interests. As the name suggests, "rights and interests" include rights and interests, and the word "etc." implies that they are not exhaustive. Both of them can be extended with the help of the judge's discretion. In the judgment of the German Leserbrief case, the "other rights" in Article 823, paragraph 1, of the German Civil Code were used to protect the "human dignity" of Article 1, paragraph 1, and Article 2, paragraph 1, of the Basic Law. two basic rights of "free development of personality". It is precisely because of the promotion of similar cases that emerging legal rights of personality have continuously withstood the test of constitutional values ??and entered the empirical field of private law. This has enabled personality rights as a new type of civil law rights to achieve richness in type and relative independence in status, and thus also Promoted the improvement of the German civil legislation and rights system. Civil rights are the basis and important content of civil activities. With the progress of society, the relatively closed civil rights system and the people have changed. Conflicts gradually arise among the ever-increasing awareness of rights. The reconciliation of such contradictions can be achieved through the judge's discretion with the help of uncertain legal provisions and legal concepts in legislation, but its final solution can only rely on the enrichment and development of the civil rights system. When civil rights are recognized and created through law, it cannot be said to be the creation of legislators out of thin air; throughout the history of civil law in various countries, many specific civil rights originated from the people's new rights demands in the process of their emergence and development, and then provided the basis for civil justice. It was recognized through discretion, experienced the accumulation of typical cases and repeated practical verification, and after receiving institutional support from the judiciary, it was finally included in the coverage of civil legislation and ranked among the statutory rights. The declaration of basic rights clauses in the Constitution and its indirect effect are just to demonstrate the legitimacy of the protection of a certain civil right from the perspective of value judgment, thereby supporting the basic law to support the development of this right in practice and finally the formation of specific legislation. Confirmation, thus promoting the continuous expansion of the scope of civil rights and becoming one of the driving forces for the improvement of the civil rights system.