Restrictions on the substance of constitutional rights, Problems and Countermeasures

Paper Keywords: the right to restrict the constitutional rights of the public interest
Thesis: Summary of human rights even though a pArt of social life, but in order to safeguard the public interest, the constitutional rights of individuals must also be limited. Yet, the ultimate goal of limitation of rights or to protect human survival and development, so as to realize human values. Due to many influences, our Constitution limits the constitutional rights of citizens of the existence of certain defects, is not conducive to the actual enjoyment of constitutional rights of citizens. Therefore, the urgent need to limit the constitutional rights from the principles, modalities and other aspects of the specific provisions of the constitutional rights of Perfection restrictions.

First, the substance of constitutional rights limit
The reason why the right can be restricted to the right there is a certain range, have their own borders, not absolute. As subjects of rights were not isolated, but in living in a social community, and its right to exist and among others, and Society among the interconnected and interdependent. As Marx said: "the free development of each person's free development of all human conditions." ... to safeguard the common interests of life need to pay attention to the overall . so Kant claims to establish a "universal principles of right", its meaning is "to act externally to this: the free exercise of your will, according to a general rule, can and all the other people's freedom co-exist." However, Marx also pointed out that: "In any case, the individual is always 'depArture from their' ... ... because of their nature that they need, and seek to satisfy their way to link them (relations between the sexes, exchange, division of labor) Therefore, the relationship between them must occur. "Thus," people need guidance on the 'need to meet' the purpose of the pursuit of human needs and to meet the Purpose and the inevitable pursuit of interests outside into. "subjects of rights in society diversity and its diversity of demand, resulting in a diversified, multi-level demand for the right, but also because of the unlimited right to human needs and rights and the development of limited resources and scarcity of direct tension, leading to inevitable conflict of rights . "Subject to the enjoyment of the rights recognized in the Constitution of their basic rights, are often likely to affect other people the same for the fundamental rights protected by the Constitution, so that the fundamental rights system in dynamic exercise has brought out a chaotic state. "In order to reduce the conflict of rights caused by excessive and unnecessary waste of social resources, use of state coercive power to be conscious of its limitations were.

Therefore, almost all countries have a direct and clearly defined constitutional constitutional rights of citizens can be restricted by Law. The reason why the world today clearly defined in its Constitution limits the content of constitutional rights, constitutional rights is that the most important civil rights is the most basic rights, Regardless of the manner in which the essential content of the infringement of fundamental rights are constitutional rights and freedoms will become the figurehead, so any restrictions on constitutional rights must have a constitutional basis. but "all the legal purpose of the creator Each generation of the rule of Law are derived from a purpose, that is a fact of motivation. "'Law is not repealed or restriction of freedom, but to protect and expand freedom." Therefore, based on public interest, the ultimate limitation on the right purpose is to protect human dignity, in order to realize the value, public interest is only to achieve their freedom and human rights means. So it is a positive right to limit the basic means to defend rights. First, the limit between the rights of the right to respect each other. because the rights are relative, but also equal, and secondly, the right to restrict the right to defend the basic conditions. the right to pursue the interests of mankind, human beings are not always consistent with the pursuit of other social interests, as the two depArture , the restriction of rights is still the basic needs of protection of rights. Again, the right to restrict the right to defend also must pay a price. As Professor Guo Daohui said: "The restrictions and protection of the two to be divided into primary and secondary, security is the main limit is secondary. limitation is to protect, limitations, and security is a dialectical unity. "visible limit the so-called constitutional rights of citizens is the right to specific organs in order to achieve harmony between the right and to protect and expand the purpose of avoiding the subject of rights in the exercise of rights rights that may arise during the phenomenon of conflict through some form of constitutional right to set boundaries, the content of the constitutional rights of citizens, scope and ways of binding by the regulations.


Second, limit the rights of the plight of the current constitution
China's current constitution limits the constitutional rights embodied in Article 33 of the main states: "Every citizen enjoys the rights under the Constitution and Laws, and must fulfill its obligations under the Constitution and Laws," Article 51 stipulates: "Citizens in the exercise of the PRC freedoms and rights, must not harm national, social, collective interests and the legitimate freedom of other citizens and rights. "visible, limited constitutional rights of our citizens first and foremost reason is also national, social and collective interests. that individuals obligations to society and others, it can be based on some reason to limit the rights of individuals. but "our Constitution the rights of individuals may be caused by too much publicity to the general well-being of the best to protect against the deeper harbor." but also for constitutional rights limitations of the existing constitutional principle too, and the Constitution of the enabling legislation did not determine the appropriate boundaries, leading to the actual provisions of laws and regulations, the content may be beyond the mandate. Constitution provides for restrictions on constitutional rights of citizens, it should be necessary in limits, these limits are overstepped the boundaries of state power, but also the core of constitutional rights. constitutional rights is a basic right (basic human rights), different from the normal legal rights, the Constitution lists the rights of sexual display and provides for the exercise of these rights range at the same time, it is important to particular provisions of state power through legal restrictions on the boundaries of these rights and limit the negative power of the state requirements. because the Constitution is to regulate the content of the most essential national public power operation, adoption of the constitution section to determine the boundaries of civil rights restricted, the scope, extent and manner of legislation the legislature can limit arbitrary, indirect control of the executive, the judiciary limits the power of civil rights acts of the state power to the magic and draw a line insurmountable to achieve the purpose of protection of the rights of citizens the most basic, so fundamental rights restricted by the content of constitutional issues is the proper meaning. As some scholars have pointed out, "general well-being of individual citizens human rights and ever-present tension between, if In exceptional cases, restrictions on certain human rights of citizens is compelling choice, then, to prevent countries do not properly restrict the human rights of individual citizens is a constitutional form of this civilization, the bounden duty of the law. "clearly in our constitution there is no such provisions, the Constitution limits the constitutional rights of citizens is more reflected the expansion of individual rights against. Meanwhile, from the legislative point of view of simplicity and accuracy requirements, our Constitution, Article 5l of "national, social, the collective interests of the "replacement of the internationally accepted" public interest "or" public welfare agency, "the expression of such words, so that the already uncertain terms the public interest becomes more blurred. Taiwan, China stressed the public interest to scholars Chen Xinmin not determine the same, he pointed out that the "extremely abstract concept of public interest, an interest in addition to the content of their uncertainty and the uncertainty of the target beneficiaries, but also as the country expanded the scope of the task and the basic principles of state practice, can change the old concept of public welfare and public service, according to the formation of new content. "and will not harm" national, social, and collective interests "on the without prejudice" the freedom of other citizens and legal rights "before the cause is easy to give false impression that "national, social, collective interests" are always higher than that of the legitimate interests of individual citizens, this is the "National Standard" and "Country first" concept reflects, implies a sense of contempt of civil rights, and " national, social and collective interests "are not legal terms, more like a political language. so that the legislature can often social interests and public interests or collective interests of the development of restrictive legislation as an excuse to abuse of discretion restrictions on citizens constitutional rights, violation of lawful rights and interests of citizens. Links http://www.hi138.com Research Papers Download to "national, social, collective interests and the freedom of other citizens and lawful rights", for social public interest and national security needs, the constitutional rights of citizens should be limited. but limit the constitutional rights of citizens in the content and form should be subject to more stringent "limits." The current constitution of what is "national, social , the collective interests "and did not make a specific definition, and no limitation of fundamental rights of the procedures, scope and limits of such a concrete description of the content. This idea and the system's lack of real life, has led to the widespread level national authorities through the development of administrative regulations, local regulations or rules, regulations and lower the rank the effectiveness of regulatory documents arbitrary restrictions, deprivation of basic civil rights of serious problems. If the existing Article 35 of the Constitution stipulates: "Citizens of the People's Republic of speech, press, assembly, association, of procession and of demonstration. "which seems to no limit, but specially formulated for the implementation of the section and out of the <<meeting demonstrations Law"> provides for too many restrictions, Shi of the constitutional right to a large extent useless. For example, some scholars wrote that <<shall prevail Law ">" is not so much the right to security law, as it is to limit the rights of law. "produces this phenomenon in addition to legislative Technology reasons, mainly because China's current Constitution on the assembly, of procession and of demonstration liberties is not clear, in particular, the system does not establish safeguards and measures for the legislature to pass legislation to regulate the free exercise of constitutional rights, and when, for How to set reasonable limits on the necessary measures with a large range and choice of space, which in a sense, prevented the realization of these rights and freedoms.

Third, improve measures of vision limits the constitutional rights
As scholars have pointed out: "a historical development perspective, the constitutional provisions of fundamental rights, is nothing short of the protection of people, from suffering the abuse of state infringement." With the development of society, constitutional rights, in essence, from the traditional fight against the country, change to require countries to actively benefit from the resistance and the risk of extreme fear and the freedom of state intervention in the private sector the right to request changes to the national desire to actively intervene, thus forming the concept of state benefits. Modern constitutional rights of traditional views on the functions and about constitutional rights against state power as a violation of the "right to due process" than there has been different. So in essence, does not change the constitutional rights of individuals subject to the premise of the state and society, in the foreseeable future in terms of quality or the content within the quantity will increase. but "how can the highest concept in the Constitution and binding under the influence of the fundamental rights of the 'implementation' and 'restrictive' issues within the legal system can operate as complete as possible" . This requires restrictions on the constitutional rights of legal reservation system carefully designed to achieve a balance between the two.


For this reason, recognized by the Constitution in order to ensure civil rights and freedoms of citizens actually enjoy for the future of the constitutional text should be fully modified by reference to international human rights conventions and Germany, a successful example of the Constitution, right in the Constitution expressly limits the exercise of constitutional rights of citizens the scope of the constitutional rights of citizens of the State authority to limit the purpose and limits and other specific matters, to achieve the return of the core values of the Constitution. to limit the constitutional rights of the principle, generally include three aspects: the scope of the exercise of constitutional rights of citizens, citizens of the Constitution limits state power the purpose and limits of rights. First, clear the scope of the exercise of constitutional rights of citizens is the right to avoid possible conflicts arising phenomena. As some scholars have pointed out that "while the concept of human dignity implies a double meaning of the rights and obligations, thus making contribute to achieving the Constitution's core values of the balance of rights and obligations, and in case of conflict between the rights defined under the right to provide evidence based. "Second, the clear purpose of the Constitution limits the right to establish such a concept: In order to protect human survival and development, to realize the value of the legitimate interests of individuals, legal restrictions on freedom and rights of the reason must be the same for the protection of the legitimate interests of others, freedom and rights. As emphasized by Rawls , "the priority of fundamental freedoms" means a basic right can only be due to other fundamental freedoms restricted or denied, "the reasons for restriction of liberty from the principle of freedom itself." Therefore, based on national security, public order, public health or ethics in the public interest to restrict the rights can, however, is not the purpose of public interest, it is only the right people to achieve their freedom and the means, based on public interest, the restrictions on the rights of the ultimate goal is to protect the people's survival and development, In order to realize the value. Third, the Constitution expressly limits the right to restrict or limit, a negative emphasis on the provisions of state power, purpose is to "prevent the government power to individual liberty and property of any violations", the famous U.S. Constitution Article 1 and l4 is exactly the purpose of the amendment. Although based in the public interest can be limitations on the rights, but the limitation of rights is not unlimited. As Milne points out, "There are certain rights, respect them, are universal minimum ethical standards. "Pierre Rui said," Government is not some violation of fundamental rights, and even the most active in the country can not support. "Therefore, the state limits the basic rights of citizens should have boundaries, that is, "limit" itself should be strictly limited. 'shall not limit the rights of the basic kernel "is almost a consensus in the world of the provisions of the Constitution, international human rights conventions which have been defined. the right to protection from perspective, the clear purpose of limitation of rights, establish the basic rights of the Constitution shall not be restricted core concept in the Constitution makes it clear that the specific restrictions, and prevent the law of fundamental rights more restrictive. Therefore, "the provisions of the Constitution must be limited right to freedom of the people of the specific conditions of the law can not violate this provision, the right to restrict people's freedom. "Also, because of the restrictions for the constitutional rights of the general reserves only the law, so there is no difference in the approach is too absolute, not in line with changes practical. So we can on the need to limit the constitutional rights of citizens to take broad approach outlined in Canada, that is based on the importance of civil rights, the restrictions imposed are also different. such as the German Basic Law is recognized for its various rights and freedoms the different nature of the distinction between different extent, scope and manner authorized by law enacted by the legislature to limit the performance of such a distinction reserved for the simple type of legal reserves, increased legal reserves, general restrictions, no limit reservations. so can learn from Germany experience, according to the nature of the constitutional rights of its different limits: human dignity, personal freedom, and other people of the man's "self-preservation," the sense of right, except in necessary cases, such as the risk against epidemic diseases, treatment natural disasters or serious accidents, to maintain a free and democratic basic order, and national existence and security and other special circumstances, must not limit the right to vote, freedom of speech, freedom of association of these important "self-expression" sense of political rights can in exceptional circumstances restrictions under the law, and property rights, education, labor rights and other major development for the people play a "material guarantee" the social and economic rights, by legislative or administrative organs in accordance with the Constitution and laws should be limited. Finally, in the specific provisions of Amendment of the Constitution to reflect the reservations, constitutional mandate, reasonable limits and restrictions on program content. such as those on the right to personal freedom and property rights and other settings, given the right to personal liberty and property rights related to human existence and value of, the law should be The most prudent and the most fair procedures to limit it. Most countries in view of the procedural provisions of the constitution with the protection of personal freedom and property rights is closely related to constitutional revision in the future increase in the Constitution when "the prior and reasonable compensation "content and" under the due process of law "provisions. on the setting on the relevant provisions of the state of emergency, mutatis mutandis, on the state of emergency in most countries, the provisions of the Constitution, its perfect, at least should include three elements: No the right to restrict types of emergency period and the right to conduct limited review of methods.

The right to restrict the constitutional rights of citizens is an important theory and constitutional theory of content is an integral aspect of protection of the rights, but also the right to be concrete in order to achieve the prerequisite or condition. And thus improve the restrictions of constitutional rights, constitutional rights of citizens "to achieve" and "restricted", the highest concept in the Constitution and under the influence of binding can improve as much as possible within the legal system to operate, has very important theoretical and practical significance. reposted elsewhere in the Research Papers Download http://www.hi138.com