Fundamental rights and the limits of private rights
Keywords:: basic rights / private rights / the / function / civil
Summary: As a legal category, the concept of rights is only appeared in modern society, it and the generation of constitutional political philosophy is essentially associated together. The concept of rights arising from the path of view, that the private law of fundamental rights before the rights the right to produce is a misunderstanding. arising from the right under the point of view, the basic rights are the basis and origin of private rights. on the fundamental rights and private rights, including legal rights, including the terms of the relationship between the former is the originator of the latter based on the content of the performance of the latter is the former. fundamental rights and legal rights related to the relationship between the logic of the law can not be denied the right to independence. legal rights compared to the basic rights of its roots, has priority in the application of . constitutional text other than the "right" in nature is a fundamental right. to the right function is concerned, the main function of the civil rights performance of its obligations with respect to the main claim, compared with that basic rights are not kinds of property.
Civil Law and the Constitution, as are a core and build up a rights-institutional system, the relationship between the Constitution and civil law is largely around the fundamental rights and private rights in the relationship between different levels of expansion. From the practice point of view , due to the open structure of the fundamental rights, the right words on the private law of fundamental rights before the emergence of the so-called "objective reality", as well as private law principles of "right of presumption" and many other factors influence between fundamental rights and private rights The relations in the different disciplines, particularly in the disciplines of civil law understanding of a certain ambiguity there, which led some people to understand the generalization of Civil Rights, and even endanger the relationship between the Constitution and Civil Law recognized the right body. In this article, the author proposed for basic rights and the limits of private rights to do a preliminary sorting out problems, to teach in the academic colleagues.
First, the basic rights and private rights of the vertical dimension in time back - have been generated for the concept of rights
"Rights" is used in modern law is very high frequency of a concept, but the high frequency of use of the concept of the result of the unexpected is man: not only those who frequently waved "rights" banner, demand for the value to the people or the vestments of body often can not accurately say "rights" the precise meaning of the term, even those theories in mind as a career law scholars are often not of their making in the logically self-consistent interpretation of , so that was that, given the right to the next "formal definition of" is not possible, should be right as a "simple, non-definition, not of the original concept." [1] Kant pointed out, ask a What is the right place jurists like to ask what is the truth, a logician, that would make him feel embarrassed. Their responses often is: do not ask who put forward a positive answer that general question, but simply pointed out that a the laws of the State at a certain time that the only correct thing is. [2] In theory, the right to existence is a concept, it is a person's perception of their own autonomy and independence of such people of recognition. If human beings do not have the awareness to pursue their own interests, right from the phenomenon is not generated. from a practical point of view of human social development, human consciousness is not pursuing their own interests, there has never been, but the development of human society to a certain stage of the product. In the primitive society, as individuals and independent groups can not be divorced from survival, forced to the natural pressure, primitive man not have on the pursuit of the interests, rights do not have to be generated in the soil. As Engels put it: "In the clan house rights and obligations is also no difference between participating in public affairs, the implementation of Blood Revenge, or to accept this atonement, what is right or obligation of this kind of problem is the Indians do not exist. "[3] With the productivity development, to the late primitive society, when the remaining products began to appear, and then produced a concept of private ownership. This concept of private ownership is a human rights awareness, when it is outside the interests of people into the idea and the idea of a long-term social life are gradually recognized, they have the rights. However, the concept of private ownership and the past this kind of primitive society that "According to the" fundamental antagonism between traditional and more of the control of the remaining products are mainly very small number of people in society Therefore, the right of early class society is more "law" in the form shown, the "right" itself does not have an independent meaning of existence, most of society, in addition to passively comply with the law, is not with the corresponding "rights" concept, which seems to be indirectly explain why in the history of a relatively long period of time, some Western countries, the "law" while carrying the "right" meaning. From this point of view can be seen, of course, the emergence of private ownership for the "rights" appears to provide a preliminary basis, but because of "rights" but also by many other factors, so it is not sufficient to derive the modern meaning of the "right", then the so-called "rights" of social Most of the people, but it is mandatory law, which right now is a sense of disparate. "rights" concept of truth there is something in modern times, and that individuals and political The Formation and hence contribute to people's perception of their own autonomy has a direct relationship.
Ancient Greece, through its political philosophy is the logical thread of the overall system and Individualism in the debate. Which, in theory and practice is dominated holism, individualism despite late in ancient Greece have begun to appear, but The period proposed by the Stoic school of thought is not individualistic, "WTO", but "born", and the philosophy of individualism can not resolve the contradiction between thought and fatalism. French scholar Louis Dumont to Sri Lanka and more Ge Zhuyi call this "rejected by" that "world we live in society, but he lives outside the social world." [4] Moreover, "the Greek concept of political thought is not prominent in the individual" Individual Thought more as the idea of individual micro-spots exist, and not as showing as a generalization of the former state, in this context, the concept of right is difficult to generate. British scholar Enaisite Buck study of ancient Greek political theory held that, in ancient Greece, "the concept of rights seems almost to have been formed." [5] compared with the ancient Greek, Roman, as the lack of a source similar to the ancient Greek political philosophy out of its own Romans often consciously or unconsciously invoked the ancient Greek political philosophy to explain its political and legal system. in the territory of the Roman Empire existed in many schools of Greek philosophy, the dominant is the result of transformation of Stoicism. face there is the reality of the Roman Empire, Stoicism had previously held ideas altered the times, more in the philosophy of holism from the previous shift individualism, a strong proponent of human equality and natural law philosophy. However, more than Slovakia Ge Zhuyi by its very nature is still a born individualist, who appears in Stoicism, individual countries and societies do not have to rely on the existence of people and not necessarily have to lead a political or social life, on the contrary be a wise man from the life of society should be the people's pursuit of the highest value. Therefore, to Roman society as a whole, although individualism than ancient Greece, a marked elevation of its status, but because of its birth, institutional level occupied The fact remains the dominant holism, and thus the period also gave birth to future generations not to the "right" concept. American scholar Schmidt declared: "true freedom of the individual rights and respect for individuality, in Greece and Roman culture is nowhere. "[6] In this regard, some scholars tend to hold opposing views, because many of the rights of the Roman system of the textbook is written in accordance with, but the crux of the problem is there at the time the" right " The Meaning and the current period of one understanding of "rights" in the nature and content is the same? If only the word as a judge "right" if there is a standard, then, the ancient Chinese society has a "right" again! Italy scholars have refuted the Ƥ�ʽ��� Talan Nuo: the subjective rights of abstract concepts such as "The Romans did not expressed in the technical sense of the important concepts to be smuggled into the (ancient Roman)" and "Twenty century Roman scientists are stubbornly imbued their 'objective method' and 'subjective rights' concept did not Roman. "They actually hinder our understanding of Roman law made pure. [7]
Compared with the Stoic doctrine, developed in the late Roman Christianity from the beginning to insist on the personal value placed on prominent position, even in its state religion of the Roman Empire, began to challenge the law of the emperor, as long as the people's will and God's will is consistent with the legitimacy of his behavior. However, individualism, Christianity and Stoicism in essence is the same strain, is a birth of individualism, which Individualism is not enough to derive the modern concept of rights. Of course, after Christianity became the state religion, its influence is only during the period with the Stoic and the social elite in particular has been completely different, it has gradually become a kinds of lifestyles, social values of their individualism propagated gradually recognized, which was then their "accession" and get people in the secular recognition of the concept and system level basis. Since then, the efforts of Thomas Aquinas Christianity gradually began to secular, secular in the individual level, the result is dramatic: The secular, Christian deepening of the control of secular society, secular society gradually towards individualistic society, but at the same time, the church itself has become a whole doctrine of the structure. secular change of life preached by the Christian ideology further individual development, and gradually won the recognition in it secular society, secular individualism began to appear, which is "right" The emergence of the concept provides the ideological basis of .12 century, the church in the Roman jurists in the "ius" the term for a comment, just during the previous characterization of the "law" of the words was gradually injected into the subjective right meaning. However, the secular ideology, the individual can only inspire people to recognize their own autonomy, intrinsic in people's minds wake-up "rights" consciousness, can not turn on the "right" to exist in a convincing basis for a description of Thus the period of "rights" only in a sense to the bud, which will determine the jurists comment on "ius" Note the term appears to swing, which fully demonstrated that their "subjective rights issues full of contradictions and hesitations, but also fruitless. "[8]
The late Middle Ages, the Renaissance movement and the erosion of religious reform movement, the earlier that individuals do not have the integrity to achieve the philosophy of religion to the WTO philosophy of individual structural changes .1543, the Copernicus <<celestial bodies On the> "was Written publication, causing a fundamental change in research methods, so that Europe and the world entered the Age of Enlightenment rationality. rationalist not to God, as did the previous time-based analysis, the explanations related issues, but rather person's vision to observe and understand the world, which contributed to the religious philosophy of individualism individualism to the transition. Since then, Hobbes be applied to the political arena, and after Locke and other human development and transformation, and ultimately to establish a constitutional doctrine political philosophy. The emergence of political philosophy, the initiation in the 12th century the "right" concept of the formation of the ultimate in modern society. from the "right" path of development point of view, after the 12th century, concerned with "ius" (Act) the term subjective discussions in the once quiet .14 century, although the Christian world as the "apostolic poverty" debate on the issue erupted again, Marsilius of Padua appeared right on the subjective interpretation of the beginning of origin, but also William Occam's rights under the impetus of the subjective impact of the widening, however, until before the advent of constitutionalism and political philosophy, the modern concept of right does not really appear. As the American scholar Leo Strauss said: "The thought of subjective rights expounded on the philosophical sense, and then said our modern sense of individualism philosophy exposition begins with Thomas Hobbes. "[9] Strauss view, Hobbes is considered the reason why the father of modern political philosophy is that "modern political philosophy will be 'rights' as its starting point, and classical philosophy is respected 'Act'." [10] This language can be described as brilliant! "rights" really in the modern concept of reason there, the reason lies in the rights it had completed the task of those who did not, indicating that the "right" to exist is based on its shape from the ideology changes to the system provides a compelling reason. After following Hobbes, Kant, Hobbes recognized the one hand, the proposed social contract theory in a problem state instructions on the force, on the other authorized person's free will, in particular, into the civilized society in the future free will, then logically the "Law" and "right" to break off. According to his theoretical framework, people into civilized society, he in the natural rights of the state not only not lost, on the contrary, it gained the protection of positive law , the natural rights of temporary set in the system of positive law framework can be removed. This has not only "law" and "right" to achieve a structural separation, and, based on the theory to explain the strong force, "right" to self- the beginning of its formation, it will have a presence before the law system of property!
Integration of the above, I believe that the right to a legal category that has only appeared since the modern society, and that the basic rights of private law rights exist prior to, and then denied the basic rights of the integration of private law rights, and is misunderstood areas of rights.
Second, the right to exist and the basic rights as the basis for the right to exist according to the legitimacy of private law
According to subject, content, objects, and relations with the obligations of different standards can be broken down into different types of rights. In which rights and private rights of law is an important category. Currently, the scholars on the public right and private right position more confusion, the focus also appears to not quite the same, which, from the perspective of the right to locate the public rights and private rights, there are three types: First, from a personal point of view to locate the public rights and private rights, both as individuals will rights. [11] Second, a two-way from the individual and the State to locate the public right path, from a personal point of view to locate the private rights, rights that include both public and public rights of individuals, including public power state. [12] its Third, from the perspective of form or substance of rights and private rights of public sector points. [13] The author believes that the rights of the public rights and private sector should also consider the three sub-factors: first, from a personal point of view positioning; Second, the legal rights under the perspective of the nature of positioning; third, right from the relevant rights and interests involved in the nature of the angle to target. Under this standard, the civil rights are private rights, fundamental rights it should be attributed to Public Rights. on the public right and private right distinction, directly or indirectly, of the academic results are more literal meaning from the division basis, and it can also be done on an intuitive induction, which, I do not do drilling. However, on basic rights, but relatively complex. The reason is: the fundamental rights of the public rights on the one hand, on the other, or the rights under the Constitution, the two factors makes the distinction between fundamental rights intertwined with the civil rights seem clue Some complicated. constitutional rights and civil rights on the difference between its scholars had done distinguished scholars. [14] In this regard, I hold the same position here has no intention of further expansion. I intended to put forward a question: basic rights can become the basis for the existence of civil rights? In this regard, some scholars hold opposing views, [15] For the scholars held this view, I hold opposing views. I believe that in the nature of fundamental rights is a public right in the position belongs to the constitutional rights, civil rights are private rights in nature, the status of a legal right, which should be developed before the person as their basis. concrete can be analyzed from two perspectives: first, as the fundamental law of the Constitution and Public Law integration of the civil law; Second, the existence of the right basis. On the first side, the author has made in his article described, [16] here the main aspects of this from the second to start on.
As mentioned above, the "rights" as a separate category of law only appeared in modern times. There are several scholars pointed out a comparative study of civilizations, "right" word is relatively modern invention, it is the introduction of European languages is the Latin word "ius" ("jus") the change in usage results, this change occurred in the 14th and 15th centuries. English "rights" like the words and the nature of English and other languages in the same terms only in the language of the later period of history, that only appear near the end of the Middle Ages until the Middle Ages until the end will, in any ancient or medieval language has no words can use our "right" words to explain. [17 ] Well, the reasons for this phenomenon what is it? earlier from the perspective of philosophy of restricting the "right" were the cause of the concept of longitudinal analysis, but that was less than the line. "rights" not only the emergence of the concept of have the political thinking of leading individualism, but also must be logically self-consistent theory of legitimacy as a demonstration of its theoretical basis, or even based on the "right" to obtain necessary statutory body from the recognition of social and system level requirements The kind of theory for the society must also be accepted by the majority, and thus reflected in the system level. So, the "right" to exist is based on what is it? before modern society, Christian theology has tried to "right" comments made in theory, but because of its "birth" of the kind of theoretical explanation is difficult to promote as a legal category of "rights" emergence of the concept. In contrast, modern society is ruled by law view of the world community. [ 18] since the late Middle Ages began, various political theorists have begun from a different perspective on the "right" to interpret, in which the classical "natural law" theory put forward by the people gradually gained widespread recognition and lead to the people political revolutionary effort and it's the right idea Changdao loaded into national constitution. and the simple ancient Greece compared to natural law, replacing the medieval period produced Theology Natural Law and Modern classical natural law Buzai is supernaturalism, and but naturalistic; same time, it is no longer nationalism and moralism, but individualism and egoism. it starting from the bourgeois theory of human nature to assume their natural state as a basis for argument. classical natural law Grotius, founder of School of the view that the law is not derived from the will of God, but from natural and human reason. He put the right as a quality, a man as a rational inherent quality; Since this kinds of quality, a person owns something or do something that is proper and just. this concept actually contains natural rights thinking. In this kind of thinking under the influence of Grotius tried the macro and the right to discuss the micro level, he not only at the macro level distinction between the "ius" subjective and objective meaning, but also on a clear definition of rights, while he was still his book <<Dutch Law Introduction "> in order to subjective rights as a tool, according to personal law, property law, debt law, private law in order to build their own system. However, the context of his ideas are still heavily influenced by medieval theology, the influence of natural law, and he the concept of rights is not able to make a convincing legal sense of the instructions. This work was followed by Hobbes completed. Compared with the former, Hobbes no longer limited to their own natural law theory as secular theology and ethics intermediary rational law, [19] but "Trying to sustain their state unified power back to the nature of state power lies within our own principles, which we recognize as our own all the principles." [20] Huobu Sri Lanka achieved the theory of the history of political philosophy is very important turning point: First, it believed in the classical political philosophy and moral position of the political subject to structural flip over, morality should be subordinate to politics, politics is intended to protect the rights of citizens the value of a new doctrine, the government began from sacred to secular; Second, it's the basis of political legitimacy from the religious and political concept of structural transferred to the social contract based on the track, thus indirectly given to the social contract On the strength of a revolutionary, so that the people of Jian trend in the new era of political action and interpretation and interpretation of the dominant theory of the legal system; Third, it will be the traditional center of the political philosophy of holism and obligations of the land transferred to the structural dominant in individual rights-centered doctrine and the track started to become political and social rights of priority to construction of the center spindle. Of course, the state of nature as Hobbes, natural law, social contract understanding of the limitations of the times, therefore, his theory Despite the ideological level, it is very ambitious, but it is not logically self-consistent: Since the end of his theory of the ideal system is derived absolute monarchy, and therefore strive to make him the right to construct a political community as the center's original intent can only is empty talk, and correspondingly, the theory is difficult to get people's subjective identification time of change and eventually was abandoned. After Hobbes, Locke, some flaws in his theory was altered, the state of nature, natural law, natural rights, social contract and so was injected new meaning, [21] in his efforts, Hobbes theory of absolute monarchy conclusions derived are adjusted to the construction of the track of limited government, rights protection system has been based. compared with the theory of Hobbes, Locke's theory of the deep level of thought, a thorough analysis of the extent and degree of system, the apparent close is more inferior, but because it's popular, moderate, practical, in line with common sense, but in line with "ordinary people reason", which made the former can not match the effect of social identity, and the United States and continental Europe had a preamble of the Constitution of the impact. [22] the case that, for the introduction of the concept of rights is precisely the institutional critical. However, in Locke, where the legitimacy of the right to exist and not be completely logical explanation, the most critical question is: why assume that the natural rights of pre-derived evidence to the legitimacy of the right to exist? this challenges exist in reality makes the concept of rights can exist in the legitimacy of the system level has not been really done, there is need for further reform, this task from the historic French Rousseau completed. Rousseau that the state and the law are the product of the social contract, people to overcome inequality, through the social contract must be grouped together into a single person. individuals should give up their natural rights and to the community, from society by their "real rights." [23] that has the natural right to the intermediary through the social contract, transition into the "real rights", that is positive rights, the legitimacy of natural rights consequent to a structural empirical transferred to the right there. as a legal category basis for the existence of the legitimacy of the rights issue can finally be completed in Rousseau. from the constitutional practice, despite its origins in Hobbes countries based on the theoretical right to uphold the position of not quite the same, and, since its formation at the beginning, it was to a punitive expedition from other school, but because of the kinds of theories and the United States and Europe the traditional cultural background, "senior law" concept of reason, and with the period of social and political changes of the same trend, therefore, the hypothetical's theory is soon become the mainstream of modern social theory since. It not only changed people previously pursued "obligations based" traditional values, but also for the spirit of its main line, since the construction of the modern state system. constitutionalism early, in the face to Hume's experience, represented by the ensuing ethical rationalism and skepticism, moral relativism of the attacks, natural law to amend the one hand self, on the one hand to fight back. [24] In this process, the classical natural law gradually into natural law of modern humanism, and the relationship between legal positivism and gradually ease, but its previously established rights under the theory concerned has not been materially affected, until today, it is still the dominant theory of the rights of people to interpret . At the same time, holding its position against the ethical and moral relativism has become increasingly skeptical rights theorists have been abandoned. [25]
Right to exist in an increasingly solid basis for the same time, empirical relationship between the internal system of rights would follow. As mentioned earlier, the legal aspects of the right to exist is the first in the country based on the existence of natural rights, the latter Europe and the United States long-term existence of the "higher law" under the concept of invasion, with a broad basis of social recognition. Although the course of its long-term development, has gone through by the "birth" of the theological significance of the natural rights natural rights to the naturalistic , then the sense of the fundamental rights of constitutional change, however, implied in one of the "higher law" concept is the same strain. Compared with the previous period, the constitutional era of the "higher law" is no longer external to the secular society exist, the illusory sense of abstract natural rights or natural theological doctrine of natural rights, but is set out in the basic rights of the State Constitution. Accordingly, the people of earlier times "higher law" of the superstition transferred to the structural to the era of constitutionalism the Constitution as its carrier subject to being admired, and institutional.
Structural transition in this process, the fundamental rights to justify the existence of legal rights and basic rights of relationship between the rank to be clear. If we say that the basis for the existence of fundamental rights is based on carrying it as " higher law, "the implication of natural rights, then the basis for the existence of legal rights is to be institutionalized as a natural right of the carrier to comply with fundamental rights. Based on the foregoing rights are the foundation of discourse theory is not challenging, the extension of reasoning should be logical. So since the right of private law is based on the basic rights be questioned by the development. At present, people questioned the findings of this there is no confusion mainly: early before the appearance of fundamental rights, even in period of Roman law, private law right to have emerged much later than the time it is also different from it in nature, but also ideas on how the fundamental rights subject to its moisture may actually become the basis for the development of the former is it? Based on the above concepts generated on the right path to be investigated and the existence of rights here and extend the conclusions, according to the analysis, should be able to eliminate the confusion.
Third, the fundamental rights and private rights, including the difference between legal rights, including
"In the theoretical study of constitutional law, constitutional scholars have long plagued the theory of one of the most basic question is 'What is a constitutional right?' ... ... According to the Constitution arising from the rights under the law of constitutional rights and whether there was a certain quality requirements of the different? "[26] This issue is not only the basic rights and legal rights concerning a question of the relationship between, but also to the basic rights and the boundaries between the rights of private law issues, the impact on the judicial practice great. So, the basic distinction between rights and legal rights what is it? Some scholars have pointed out that the constitutional rights and legal rights of the difference between the following three aspects: "First, the subject is the integrity of the constitutional rights of individuals, legal rights The subject is an individual or part of the personal collection of individuals (legal). a citizen can give up their legal rights, but people could not give up the constitutional rights of all citizens. Second, is the mother of the right to constitutional rights, legal rights child rights; Third, constitutional rights are abstract rights, legal rights are specific rights. "[27] The kinds of ideas for the basic rights and legal rights to view the boundaries between the no doubt be helpful, however, reveals some of the points during There seems to be further discussion. Here, I intended to analyze the following aspects:
First, the basic rights and legal rights of its refining what is the relationship between
"Ling case" occurred, some scholars have pointed out: "In the ling case, our current general legal norms can be judged as an appropriate basis. China <" School Law "> Article 2 provisions on the right than more specific constitutional provision, specifically, is a constitutional right to education, the concept of citizenship more concrete. <"School Law"> Article 81 also specifically provides for civil liability for violations of the right to education. "" the court in adjudicating cases, no for the general content of specific legal norms, the content directly invoke the abstract terms of basic constitutional rights is clearly not appropriate. "[28] In my understanding, the views of the scholars can make the following interpretation: First," "School Law" > provisions on the right is embodied in the Constitution of the right to education; second, "" School Law "> the right to education under the more clear and specific, should prevail; Third, if applicable, the words of the Education Law , there is no validity of the basic civil rights. specific to the context of this theme, that is, by law the rights of specific legal rights in the nature of its fundamental rights and the right are two different. This kinds of ideas for the Constitution approved by the academic mainstream. [29] In this regard, I uphold the same position. with the theme of discourse here, the author of several aspects of the further extension from the following notes: First, the basic rights and legal rights different types of rights, the former is the root of a right, which is an extension of rights; Qianzhe is Houzhe be the basis for the originator, the latter is the former contents of the performance. Based on the constitution in which constitutional norms of status and formal features, the Constitution fundamental rights under the right is just a name, the specific content needs to be enriched by the legislature and the specific, from this perspective, the legal rights to the rights of specific fundamental rights are actually manifestations of the contents They can not be separated and basic rights. For example, the Constitution provides for the right to education, "Education" Education Law of Minors Act >>,<< >>,<< Compulsory Education Law, Higher Education Act >>,<< >>,<< Teachers Law "> and many other laws based on its specific content, including the formation of the Examination, subject to the right of compulsory education, equal rights to education, right to school education opportunities, education options, the right of student status, the right conditions for learning, access learning right, the right to a fair evaluation of performance, the right of access to education certificates diplomas rights and other various items. Clearly, the right to education enshrined in the Constitution left by other specific content of the law, right to education itself is empty . Secondly, the basic rights and legal rights related to the relationship between the logic of the law can not be denied the right to independence. legal rights, fundamental rights is of course substantial and specific, but this does not affect the independent existence of their own nature, does not mean they must also be applicable when the crown of the fundamental rights to the name of origin, they can build on within the framework of the law to independently adjust and sort out the relevant legal relationship. In fact, the relevant law the right to play the role of fundamental rights is the realization of the content, that is, they are all related to specific practice areas of the basic rights the Constitution promises made. to "ling case" is concerned, when the court hearing the case While you can invoke <"School Law"> in the relevant provisions, however, the Court simply can not be invoked <"School Law"> of the relevant provisions on the other hand ignored for the <"School Law"> under the law the right to trace the origin of the name dubbed the right to education. Third, the legal rights compared to the basic rights of its roots in the application of a priority. the legislative process is complete, the legal right to possess its own to there is independence. based on the concept of constitutionalism and the rule of law requirements, the majority of the greatest degree of democracy must be respected, the law must be the implementation, otherwise, the constitutional system based on the existence of majoritarian democracy will be compromised. Thus, in legal practice, must uphold the legal rights of priority criteria, and only in the end the lack of legal rights, legal rights or to consider the case of the possibility of application of fundamental rights. to "ling case" is concerned, of course, priority should be given for <"School Law"> under the legal rights, but the crux of the problem lies, "" School Law "> Article 2 provisions on scope of application and 36 to 44 on the rights of the educated clearly shows that the main obligations of the relevant laws on the right specific directional. based on the requirements of law judge, the judge can not be disobedient <"School Law"> the provisions of relevant laws to reverse the right to impose specific obligations on the main point clear. And, since that right in the nature of legal rights rather than the fundamental rights and, therefore, of fundamental rights does not matter "third party effect" problem. So, "Education" Act "> In that case the application is not feasible.
Second, the constitutional text other than "rights" are fundamental rights in the nature of legal rights or
Fundamental rights in the word "fundamental" is an undefined concept, the method for determining the content and content itself with a strong imprint of the times. The Constitution established the fundamental rights in the course of fundamental rights in an important part of But they are not and should not be a basic right of all, otherwise, it will cause a constitutional stagnation and authoritarian predecessors of later generations. Therefore, the fundamental rights of the Constitution is not a closed matter of fact, logically self-consistent system It shows an open state. For example, the Korean Constitution Article 37, paragraph 1, states: "No to the Constitution did not specifically listed on the grounds of national freedom and rights of contempt." United States Constitution Ninth Amendment provides: "The enumeration in the Constitution, of certain rights shall not be construed to deny or neglect the people retain other rights." The U.S. federal court judge has said Goldberg: "bill of rights especially the right to not contain all the basic specific enumerated rights will be interpreted as a denial of the protection of other rights. "[30] At present, the basic rights of academics has formed a consensus on open architecture, recognizing the fundamental rights constitutional text exists outside of reality. But crux of the problem is that the basic rights of the national public authorities point to a right of fundamental rights also implies the existence of national accountability. If the recognition of fundamental rights beyond the constitutional text, then how to define its scope? of the range���ڿ���Ʊ�ʹ�ܷ���֮"����Ȩ��"���ֳ�һ�ַ�����״̬,���ջ���ع��ҵĸ�������Σ��������ά������ͳ�ε�����.���,���DZ�����ʶ��:"���Ż����ı仯�� �����Ŷ����˵����ϵ���в�ı仯������������Ҫ�����µ�Ȩ��.����,��Ȩ��ν����չ,ֻ��������Ȩ������˼���ֵ��Σ��,���������������Ȩ."[31]������ʵ������,�����ܷ�ѧ���۶Դ���������һ�����е���̬:һ��������ܷ��ı���֮"����Ȩ��"����ʵ����,��һ����Ը���δ�������ܷ��ı���"����Ȩ��"�ֳַdz�������̬��.�ڲ�����,ֻ���ܷ����л��ز�ӵ�жԸ���"����Ȩ��"���Ͽ�Ȩ,����,�ܷ����л���Ϊ��ά�����������þ�����ͳ��,����ͨ�����ܷ��ı����ھ����������"����Ȩ��"��������.
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Notes:
[1] JoelFeinberg:"TheNature and Values ofRights", Journal ofValue Inquiry, 4(1970), pp. 43��244.
[2] [��]����:<<�����ζ���ѧԭ��:Ȩ���Ŀ�ѧ>>,����ƽ��,����ԶУ,����ӡ���1991���,��39ҳ.
[3] �μ�����:<<��Ȩ�������Դ>>,�й�������ѧ������1992���,��3��25ҳ.
[4] [��]·�ס�����:<<�۸������塪�������ִ���ʶ��̬������ѧ�۵�>>,�ȷ���,�Ϻ����������2003���,��22ҳ.
[5] [Ӣ]����˹�ء��Ϳ�:<<ϣ���������ۡ���������ͼ����ǰ��>>,¬��Ƽ��,�������������2003���,��2ҳ.
[6] [��]ʩ����:<<�����̶�������Ӱ��>>,��������,������ѧ������2004���,��239ҳ.
[7] �μ����¾�:<<Ȩ���������ʷ>>,��<<��ѧ�о�>>2007���4��.
[8] �μ�ǰע��,���¾���.
[9] [��]�а¡�ʩ����˹��Լɪ������:<<������ѧʷ>>(��),����Ȼ����,�ӱ����������1993���,��442ҳ.
[10] [��]�а¡�ʩ����˹:<<���˹��������ѧ>>,��ͮ��,���ֳ�����2001���,��188ҳ.
[11] ʷ�п�:<<������>>,�й�������ѧ������2000���,��19��22��25ҳ.
[12] ������:<<��ѧ����>>,�й�������ѧ������2002���,��178��179ҳ.
[13] ��ӿ:<<˽Ȩ�ĸ���>>,����������:<<����>>(��һ��),���ɳ�����1999���,��401ҳ.
[14] ���ι�:<<�ܷ�Ȩ��������Ȩ����ϵ��>>,��<<�ӱ���ѧ>>2008���5��.
[15] ǰע14,���ι���.
[16] �μ���־��:<<���������ﾳ���ܷ����Ĺ�ϵ>>,��<<��ѧ����>>2007���2��.
[17] �º���:<<Ȩ����������𡪡����Լ��������ıȽ��о�>>,��<<���������>>1996���4��.
[18] ����˹:<<��ѧ���������ѧ����۵�����>>,�ظ�����ѧ����ϵ�����뷨����������ʷ�������:<<���˼����˹�۹����뷨>>,������ѧ������1957���,��92ҳ.
[19] ���ڸ�����˹����֮ý�����õ�����,�ɲ���[��]���ʴġ�ά�ǿ˶�:<<����˽��ʷ�����Ե���־�ķ�չΪ�۲��ص�>>,�°������,�Ϻ��������2006���,��290ҳ.
[20] [��]�ڸ��:<<��ѧʷ����¼>>(��4��),���롢��̫����,����ӡ���1978���,��157ҳ.
[21] �������������۵Ľ���,�ɲ���[Ӣ]���:<<������>>,Ҷ������ľ�ũ��,����ӡ���1964���,��14ҳ.
[22] ����ѧ�����������������������:"������ŵ���Ҫ��־�Ȳ���ѧʶԨ��,Ҳ����������,���Ǽ����������ױȵij�ʶ,����������Щ��ʶ�ѹ�ȥ��������Ĺ�����ѧ�����Ρ�����ͽ�������Ҫ��ʶ��������,��������һ����Ϊ������˼��֮��.������Щ�����ü�������ʵ����˵���������Դ���ʮ������,��ΪӢ����ŷ��½����������ѧ���Է�չ��ԨԴ"�μ�������:<<����ѧ˵ʷ>>(��),ʢ�������������,����ӡ���1986���,��587ҳ.
[23] [��]¬��:<<�����Լ��>>,��������,����ӡ���1963���,��28��30ҳ.
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Civil Law and the Constitution, as are a core and build up a rights-institutional system, the relationship between the Constitution and civil law is largely around the fundamental rights and private rights in the relationship between different levels of expansion. From the practice point of view , due to the open structure of the fundamental rights, the right words on the private law of fundamental rights before the emergence of the so-called "objective reality", as well as private law principles of "right of presumption" and many other factors influence between fundamental rights and private rights The relations in the different disciplines, particularly in the disciplines of civil law understanding of a certain ambiguity there, which led some people to understand the generalization of Civil Rights, and even endanger the relationship between the Constitution and Civil Law recognized the right body. In this article, the author proposed for basic rights and the limits of private rights to do a preliminary sorting out problems, to teach in the academic colleagues.
First, the basic rights and private rights of the vertical dimension in time back - have been generated for the concept of rights
"Rights" is used in modern law is very high frequency of a concept, but the high frequency of use of the concept of the result of the unexpected is man: not only those who frequently waved "rights" banner, demand for the value to the people or the vestments of body often can not accurately say "rights" the precise meaning of the term, even those theories in mind as a career law scholars are often not of their making in the logically self-consistent interpretation of , so that was that, given the right to the next "formal definition of" is not possible, should be right as a "simple, non-definition, not of the original concept." [1] Kant pointed out, ask a What is the right place jurists like to ask what is the truth, a logician, that would make him feel embarrassed. Their responses often is: do not ask who put forward a positive answer that general question, but simply pointed out that a the laws of the State at a certain time that the only correct thing is. [2] In theory, the right to existence is a concept, it is a person's perception of their own autonomy and independence of such people of recognition. If human beings do not have the awareness to pursue their own interests, right from the phenomenon is not generated. from a practical point of view of human social development, human consciousness is not pursuing their own interests, there has never been, but the development of human society to a certain stage of the product. In the primitive society, as individuals and independent groups can not be divorced from survival, forced to the natural pressure, primitive man not have on the pursuit of the interests, rights do not have to be generated in the soil. As Engels put it: "In the clan house rights and obligations is also no difference between participating in public affairs, the implementation of Blood Revenge, or to accept this atonement, what is right or obligation of this kind of problem is the Indians do not exist. "[3] With the productivity development, to the late primitive society, when the remaining products began to appear, and then produced a concept of private ownership. This concept of private ownership is a human rights awareness, when it is outside the interests of people into the idea and the idea of a long-term social life are gradually recognized, they have the rights. However, the concept of private ownership and the past this kind of primitive society that "According to the" fundamental antagonism between traditional and more of the control of the remaining products are mainly very small number of people in society Therefore, the right of early class society is more "law" in the form shown, the "right" itself does not have an independent meaning of existence, most of society, in addition to passively comply with the law, is not with the corresponding "rights" concept, which seems to be indirectly explain why in the history of a relatively long period of time, some Western countries, the "law" while carrying the "right" meaning. From this point of view can be seen, of course, the emergence of private ownership for the "rights" appears to provide a preliminary basis, but because of "rights" but also by many other factors, so it is not sufficient to derive the modern meaning of the "right", then the so-called "rights" of social Most of the people, but it is mandatory law, which right now is a sense of disparate. "rights" concept of truth there is something in modern times, and that individuals and political The Formation and hence contribute to people's perception of their own autonomy has a direct relationship.
Ancient Greece, through its political philosophy is the logical thread of the overall system and Individualism in the debate. Which, in theory and practice is dominated holism, individualism despite late in ancient Greece have begun to appear, but The period proposed by the Stoic school of thought is not individualistic, "WTO", but "born", and the philosophy of individualism can not resolve the contradiction between thought and fatalism. French scholar Louis Dumont to Sri Lanka and more Ge Zhuyi call this "rejected by" that "world we live in society, but he lives outside the social world." [4] Moreover, "the Greek concept of political thought is not prominent in the individual" Individual Thought more as the idea of individual micro-spots exist, and not as showing as a generalization of the former state, in this context, the concept of right is difficult to generate. British scholar Enaisite Buck study of ancient Greek political theory held that, in ancient Greece, "the concept of rights seems almost to have been formed." [5] compared with the ancient Greek, Roman, as the lack of a source similar to the ancient Greek political philosophy out of its own Romans often consciously or unconsciously invoked the ancient Greek political philosophy to explain its political and legal system. in the territory of the Roman Empire existed in many schools of Greek philosophy, the dominant is the result of transformation of Stoicism. face there is the reality of the Roman Empire, Stoicism had previously held ideas altered the times, more in the philosophy of holism from the previous shift individualism, a strong proponent of human equality and natural law philosophy. However, more than Slovakia Ge Zhuyi by its very nature is still a born individualist, who appears in Stoicism, individual countries and societies do not have to rely on the existence of people and not necessarily have to lead a political or social life, on the contrary be a wise man from the life of society should be the people's pursuit of the highest value. Therefore, to Roman society as a whole, although individualism than ancient Greece, a marked elevation of its status, but because of its birth, institutional level occupied The fact remains the dominant holism, and thus the period also gave birth to future generations not to the "right" concept. American scholar Schmidt declared: "true freedom of the individual rights and respect for individuality, in Greece and Roman culture is nowhere. "[6] In this regard, some scholars tend to hold opposing views, because many of the rights of the Roman system of the textbook is written in accordance with, but the crux of the problem is there at the time the" right " The Meaning and the current period of one understanding of "rights" in the nature and content is the same? If only the word as a judge "right" if there is a standard, then, the ancient Chinese society has a "right" again! Italy scholars have refuted the Ƥ�ʽ��� Talan Nuo: the subjective rights of abstract concepts such as "The Romans did not expressed in the technical sense of the important concepts to be smuggled into the (ancient Roman)" and "Twenty century Roman scientists are stubbornly imbued their 'objective method' and 'subjective rights' concept did not Roman. "They actually hinder our understanding of Roman law made pure. [7]
Compared with the Stoic doctrine, developed in the late Roman Christianity from the beginning to insist on the personal value placed on prominent position, even in its state religion of the Roman Empire, began to challenge the law of the emperor, as long as the people's will and God's will is consistent with the legitimacy of his behavior. However, individualism, Christianity and Stoicism in essence is the same strain, is a birth of individualism, which Individualism is not enough to derive the modern concept of rights. Of course, after Christianity became the state religion, its influence is only during the period with the Stoic and the social elite in particular has been completely different, it has gradually become a kinds of lifestyles, social values of their individualism propagated gradually recognized, which was then their "accession" and get people in the secular recognition of the concept and system level basis. Since then, the efforts of Thomas Aquinas Christianity gradually began to secular, secular in the individual level, the result is dramatic: The secular, Christian deepening of the control of secular society, secular society gradually towards individualistic society, but at the same time, the church itself has become a whole doctrine of the structure. secular change of life preached by the Christian ideology further individual development, and gradually won the recognition in it secular society, secular individualism began to appear, which is "right" The emergence of the concept provides the ideological basis of .12 century, the church in the Roman jurists in the "ius" the term for a comment, just during the previous characterization of the "law" of the words was gradually injected into the subjective right meaning. However, the secular ideology, the individual can only inspire people to recognize their own autonomy, intrinsic in people's minds wake-up "rights" consciousness, can not turn on the "right" to exist in a convincing basis for a description of Thus the period of "rights" only in a sense to the bud, which will determine the jurists comment on "ius" Note the term appears to swing, which fully demonstrated that their "subjective rights issues full of contradictions and hesitations, but also fruitless. "[8]
The late Middle Ages, the Renaissance movement and the erosion of religious reform movement, the earlier that individuals do not have the integrity to achieve the philosophy of religion to the WTO philosophy of individual structural changes .1543, the Copernicus <<celestial bodies On the> "was Written publication, causing a fundamental change in research methods, so that Europe and the world entered the Age of Enlightenment rationality. rationalist not to God, as did the previous time-based analysis, the explanations related issues, but rather person's vision to observe and understand the world, which contributed to the religious philosophy of individualism individualism to the transition. Since then, Hobbes be applied to the political arena, and after Locke and other human development and transformation, and ultimately to establish a constitutional doctrine political philosophy. The emergence of political philosophy, the initiation in the 12th century the "right" concept of the formation of the ultimate in modern society. from the "right" path of development point of view, after the 12th century, concerned with "ius" (Act) the term subjective discussions in the once quiet .14 century, although the Christian world as the "apostolic poverty" debate on the issue erupted again, Marsilius of Padua appeared right on the subjective interpretation of the beginning of origin, but also William Occam's rights under the impetus of the subjective impact of the widening, however, until before the advent of constitutionalism and political philosophy, the modern concept of right does not really appear. As the American scholar Leo Strauss said: "The thought of subjective rights expounded on the philosophical sense, and then said our modern sense of individualism philosophy exposition begins with Thomas Hobbes. "[9] Strauss view, Hobbes is considered the reason why the father of modern political philosophy is that "modern political philosophy will be 'rights' as its starting point, and classical philosophy is respected 'Act'." [10] This language can be described as brilliant! "rights" really in the modern concept of reason there, the reason lies in the rights it had completed the task of those who did not, indicating that the "right" to exist is based on its shape from the ideology changes to the system provides a compelling reason. After following Hobbes, Kant, Hobbes recognized the one hand, the proposed social contract theory in a problem state instructions on the force, on the other authorized person's free will, in particular, into the civilized society in the future free will, then logically the "Law" and "right" to break off. According to his theoretical framework, people into civilized society, he in the natural rights of the state not only not lost, on the contrary, it gained the protection of positive law , the natural rights of temporary set in the system of positive law framework can be removed. This has not only "law" and "right" to achieve a structural separation, and, based on the theory to explain the strong force, "right" to self- the beginning of its formation, it will have a presence before the law system of property!
Integration of the above, I believe that the right to a legal category that has only appeared since the modern society, and that the basic rights of private law rights exist prior to, and then denied the basic rights of the integration of private law rights, and is misunderstood areas of rights.
Second, the right to exist and the basic rights as the basis for the right to exist according to the legitimacy of private law
According to subject, content, objects, and relations with the obligations of different standards can be broken down into different types of rights. In which rights and private rights of law is an important category. Currently, the scholars on the public right and private right position more confusion, the focus also appears to not quite the same, which, from the perspective of the right to locate the public rights and private rights, there are three types: First, from a personal point of view to locate the public rights and private rights, both as individuals will rights. [11] Second, a two-way from the individual and the State to locate the public right path, from a personal point of view to locate the private rights, rights that include both public and public rights of individuals, including public power state. [12] its Third, from the perspective of form or substance of rights and private rights of public sector points. [13] The author believes that the rights of the public rights and private sector should also consider the three sub-factors: first, from a personal point of view positioning; Second, the legal rights under the perspective of the nature of positioning; third, right from the relevant rights and interests involved in the nature of the angle to target. Under this standard, the civil rights are private rights, fundamental rights it should be attributed to Public Rights. on the public right and private right distinction, directly or indirectly, of the academic results are more literal meaning from the division basis, and it can also be done on an intuitive induction, which, I do not do drilling. However, on basic rights, but relatively complex. The reason is: the fundamental rights of the public rights on the one hand, on the other, or the rights under the Constitution, the two factors makes the distinction between fundamental rights intertwined with the civil rights seem clue Some complicated. constitutional rights and civil rights on the difference between its scholars had done distinguished scholars. [14] In this regard, I hold the same position here has no intention of further expansion. I intended to put forward a question: basic rights can become the basis for the existence of civil rights? In this regard, some scholars hold opposing views, [15] For the scholars held this view, I hold opposing views. I believe that in the nature of fundamental rights is a public right in the position belongs to the constitutional rights, civil rights are private rights in nature, the status of a legal right, which should be developed before the person as their basis. concrete can be analyzed from two perspectives: first, as the fundamental law of the Constitution and Public Law integration of the civil law; Second, the existence of the right basis. On the first side, the author has made in his article described, [16] here the main aspects of this from the second to start on.
As mentioned above, the "rights" as a separate category of law only appeared in modern times. There are several scholars pointed out a comparative study of civilizations, "right" word is relatively modern invention, it is the introduction of European languages is the Latin word "ius" ("jus") the change in usage results, this change occurred in the 14th and 15th centuries. English "rights" like the words and the nature of English and other languages in the same terms only in the language of the later period of history, that only appear near the end of the Middle Ages until the Middle Ages until the end will, in any ancient or medieval language has no words can use our "right" words to explain. [17 ] Well, the reasons for this phenomenon what is it? earlier from the perspective of philosophy of restricting the "right" were the cause of the concept of longitudinal analysis, but that was less than the line. "rights" not only the emergence of the concept of have the political thinking of leading individualism, but also must be logically self-consistent theory of legitimacy as a demonstration of its theoretical basis, or even based on the "right" to obtain necessary statutory body from the recognition of social and system level requirements The kind of theory for the society must also be accepted by the majority, and thus reflected in the system level. So, the "right" to exist is based on what is it? before modern society, Christian theology has tried to "right" comments made in theory, but because of its "birth" of the kind of theoretical explanation is difficult to promote as a legal category of "rights" emergence of the concept. In contrast, modern society is ruled by law view of the world community. [ 18] since the late Middle Ages began, various political theorists have begun from a different perspective on the "right" to interpret, in which the classical "natural law" theory put forward by the people gradually gained widespread recognition and lead to the people political revolutionary effort and it's the right idea Changdao loaded into national constitution. and the simple ancient Greece compared to natural law, replacing the medieval period produced Theology Natural Law and Modern classical natural law Buzai is supernaturalism, and but naturalistic; same time, it is no longer nationalism and moralism, but individualism and egoism. it starting from the bourgeois theory of human nature to assume their natural state as a basis for argument. classical natural law Grotius, founder of School of the view that the law is not derived from the will of God, but from natural and human reason. He put the right as a quality, a man as a rational inherent quality; Since this kinds of quality, a person owns something or do something that is proper and just. this concept actually contains natural rights thinking. In this kind of thinking under the influence of Grotius tried the macro and the right to discuss the micro level, he not only at the macro level distinction between the "ius" subjective and objective meaning, but also on a clear definition of rights, while he was still his book <<Dutch Law Introduction "> in order to subjective rights as a tool, according to personal law, property law, debt law, private law in order to build their own system. However, the context of his ideas are still heavily influenced by medieval theology, the influence of natural law, and he the concept of rights is not able to make a convincing legal sense of the instructions. This work was followed by Hobbes completed. Compared with the former, Hobbes no longer limited to their own natural law theory as secular theology and ethics intermediary rational law, [19] but "Trying to sustain their state unified power back to the nature of state power lies within our own principles, which we recognize as our own all the principles." [20] Huobu Sri Lanka achieved the theory of the history of political philosophy is very important turning point: First, it believed in the classical political philosophy and moral position of the political subject to structural flip over, morality should be subordinate to politics, politics is intended to protect the rights of citizens the value of a new doctrine, the government began from sacred to secular; Second, it's the basis of political legitimacy from the religious and political concept of structural transferred to the social contract based on the track, thus indirectly given to the social contract On the strength of a revolutionary, so that the people of Jian trend in the new era of political action and interpretation and interpretation of the dominant theory of the legal system; Third, it will be the traditional center of the political philosophy of holism and obligations of the land transferred to the structural dominant in individual rights-centered doctrine and the track started to become political and social rights of priority to construction of the center spindle. Of course, the state of nature as Hobbes, natural law, social contract understanding of the limitations of the times, therefore, his theory Despite the ideological level, it is very ambitious, but it is not logically self-consistent: Since the end of his theory of the ideal system is derived absolute monarchy, and therefore strive to make him the right to construct a political community as the center's original intent can only is empty talk, and correspondingly, the theory is difficult to get people's subjective identification time of change and eventually was abandoned. After Hobbes, Locke, some flaws in his theory was altered, the state of nature, natural law, natural rights, social contract and so was injected new meaning, [21] in his efforts, Hobbes theory of absolute monarchy conclusions derived are adjusted to the construction of the track of limited government, rights protection system has been based. compared with the theory of Hobbes, Locke's theory of the deep level of thought, a thorough analysis of the extent and degree of system, the apparent close is more inferior, but because it's popular, moderate, practical, in line with common sense, but in line with "ordinary people reason", which made the former can not match the effect of social identity, and the United States and continental Europe had a preamble of the Constitution of the impact. [22] the case that, for the introduction of the concept of rights is precisely the institutional critical. However, in Locke, where the legitimacy of the right to exist and not be completely logical explanation, the most critical question is: why assume that the natural rights of pre-derived evidence to the legitimacy of the right to exist? this challenges exist in reality makes the concept of rights can exist in the legitimacy of the system level has not been really done, there is need for further reform, this task from the historic French Rousseau completed. Rousseau that the state and the law are the product of the social contract, people to overcome inequality, through the social contract must be grouped together into a single person. individuals should give up their natural rights and to the community, from society by their "real rights." [23] that has the natural right to the intermediary through the social contract, transition into the "real rights", that is positive rights, the legitimacy of natural rights consequent to a structural empirical transferred to the right there. as a legal category basis for the existence of the legitimacy of the rights issue can finally be completed in Rousseau. from the constitutional practice, despite its origins in Hobbes countries based on the theoretical right to uphold the position of not quite the same, and, since its formation at the beginning, it was to a punitive expedition from other school, but because of the kinds of theories and the United States and Europe the traditional cultural background, "senior law" concept of reason, and with the period of social and political changes of the same trend, therefore, the hypothetical's theory is soon become the mainstream of modern social theory since. It not only changed people previously pursued "obligations based" traditional values, but also for the spirit of its main line, since the construction of the modern state system. constitutionalism early, in the face to Hume's experience, represented by the ensuing ethical rationalism and skepticism, moral relativism of the attacks, natural law to amend the one hand self, on the one hand to fight back. [24] In this process, the classical natural law gradually into natural law of modern humanism, and the relationship between legal positivism and gradually ease, but its previously established rights under the theory concerned has not been materially affected, until today, it is still the dominant theory of the rights of people to interpret . At the same time, holding its position against the ethical and moral relativism has become increasingly skeptical rights theorists have been abandoned. [25]
Right to exist in an increasingly solid basis for the same time, empirical relationship between the internal system of rights would follow. As mentioned earlier, the legal aspects of the right to exist is the first in the country based on the existence of natural rights, the latter Europe and the United States long-term existence of the "higher law" under the concept of invasion, with a broad basis of social recognition. Although the course of its long-term development, has gone through by the "birth" of the theological significance of the natural rights natural rights to the naturalistic , then the sense of the fundamental rights of constitutional change, however, implied in one of the "higher law" concept is the same strain. Compared with the previous period, the constitutional era of the "higher law" is no longer external to the secular society exist, the illusory sense of abstract natural rights or natural theological doctrine of natural rights, but is set out in the basic rights of the State Constitution. Accordingly, the people of earlier times "higher law" of the superstition transferred to the structural to the era of constitutionalism the Constitution as its carrier subject to being admired, and institutional.
Structural transition in this process, the fundamental rights to justify the existence of legal rights and basic rights of relationship between the rank to be clear. If we say that the basis for the existence of fundamental rights is based on carrying it as " higher law, "the implication of natural rights, then the basis for the existence of legal rights is to be institutionalized as a natural right of the carrier to comply with fundamental rights. Based on the foregoing rights are the foundation of discourse theory is not challenging, the extension of reasoning should be logical. So since the right of private law is based on the basic rights be questioned by the development. At present, people questioned the findings of this there is no confusion mainly: early before the appearance of fundamental rights, even in period of Roman law, private law right to have emerged much later than the time it is also different from it in nature, but also ideas on how the fundamental rights subject to its moisture may actually become the basis for the development of the former is it? Based on the above concepts generated on the right path to be investigated and the existence of rights here and extend the conclusions, according to the analysis, should be able to eliminate the confusion.
Third, the fundamental rights and private rights, including the difference between legal rights, including
"In the theoretical study of constitutional law, constitutional scholars have long plagued the theory of one of the most basic question is 'What is a constitutional right?' ... ... According to the Constitution arising from the rights under the law of constitutional rights and whether there was a certain quality requirements of the different? "[26] This issue is not only the basic rights and legal rights concerning a question of the relationship between, but also to the basic rights and the boundaries between the rights of private law issues, the impact on the judicial practice great. So, the basic distinction between rights and legal rights what is it? Some scholars have pointed out that the constitutional rights and legal rights of the difference between the following three aspects: "First, the subject is the integrity of the constitutional rights of individuals, legal rights The subject is an individual or part of the personal collection of individuals (legal). a citizen can give up their legal rights, but people could not give up the constitutional rights of all citizens. Second, is the mother of the right to constitutional rights, legal rights child rights; Third, constitutional rights are abstract rights, legal rights are specific rights. "[27] The kinds of ideas for the basic rights and legal rights to view the boundaries between the no doubt be helpful, however, reveals some of the points during There seems to be further discussion. Here, I intended to analyze the following aspects:
First, the basic rights and legal rights of its refining what is the relationship between
"Ling case" occurred, some scholars have pointed out: "In the ling case, our current general legal norms can be judged as an appropriate basis. China <" School Law "> Article 2 provisions on the right than more specific constitutional provision, specifically, is a constitutional right to education, the concept of citizenship more concrete. <"School Law"> Article 81 also specifically provides for civil liability for violations of the right to education. "" the court in adjudicating cases, no for the general content of specific legal norms, the content directly invoke the abstract terms of basic constitutional rights is clearly not appropriate. "[28] In my understanding, the views of the scholars can make the following interpretation: First," "School Law" > provisions on the right is embodied in the Constitution of the right to education; second, "" School Law "> the right to education under the more clear and specific, should prevail; Third, if applicable, the words of the Education Law , there is no validity of the basic civil rights. specific to the context of this theme, that is, by law the rights of specific legal rights in the nature of its fundamental rights and the right are two different. This kinds of ideas for the Constitution approved by the academic mainstream. [29] In this regard, I uphold the same position. with the theme of discourse here, the author of several aspects of the further extension from the following notes: First, the basic rights and legal rights different types of rights, the former is the root of a right, which is an extension of rights; Qianzhe is Houzhe be the basis for the originator, the latter is the former contents of the performance. Based on the constitution in which constitutional norms of status and formal features, the Constitution fundamental rights under the right is just a name, the specific content needs to be enriched by the legislature and the specific, from this perspective, the legal rights to the rights of specific fundamental rights are actually manifestations of the contents They can not be separated and basic rights. For example, the Constitution provides for the right to education, "Education" Education Law of Minors Act >>,<< >>,<< Compulsory Education Law, Higher Education Act >>,<< >>,<< Teachers Law "> and many other laws based on its specific content, including the formation of the Examination, subject to the right of compulsory education, equal rights to education, right to school education opportunities, education options, the right of student status, the right conditions for learning, access learning right, the right to a fair evaluation of performance, the right of access to education certificates diplomas rights and other various items. Clearly, the right to education enshrined in the Constitution left by other specific content of the law, right to education itself is empty . Secondly, the basic rights and legal rights related to the relationship between the logic of the law can not be denied the right to independence. legal rights, fundamental rights is of course substantial and specific, but this does not affect the independent existence of their own nature, does not mean they must also be applicable when the crown of the fundamental rights to the name of origin, they can build on within the framework of the law to independently adjust and sort out the relevant legal relationship. In fact, the relevant law the right to play the role of fundamental rights is the realization of the content, that is, they are all related to specific practice areas of the basic rights the Constitution promises made. to "ling case" is concerned, when the court hearing the case While you can invoke <"School Law"> in the relevant provisions, however, the Court simply can not be invoked <"School Law"> of the relevant provisions on the other hand ignored for the <"School Law"> under the law the right to trace the origin of the name dubbed the right to education. Third, the legal rights compared to the basic rights of its roots in the application of a priority. the legislative process is complete, the legal right to possess its own to there is independence. based on the concept of constitutionalism and the rule of law requirements, the majority of the greatest degree of democracy must be respected, the law must be the implementation, otherwise, the constitutional system based on the existence of majoritarian democracy will be compromised. Thus, in legal practice, must uphold the legal rights of priority criteria, and only in the end the lack of legal rights, legal rights or to consider the case of the possibility of application of fundamental rights. to "ling case" is concerned, of course, priority should be given for <"School Law"> under the legal rights, but the crux of the problem lies, "" School Law "> Article 2 provisions on scope of application and 36 to 44 on the rights of the educated clearly shows that the main obligations of the relevant laws on the right specific directional. based on the requirements of law judge, the judge can not be disobedient <"School Law"> the provisions of relevant laws to reverse the right to impose specific obligations on the main point clear. And, since that right in the nature of legal rights rather than the fundamental rights and, therefore, of fundamental rights does not matter "third party effect" problem. So, "Education" Act "> In that case the application is not feasible.
Second, the constitutional text other than "rights" are fundamental rights in the nature of legal rights or
Fundamental rights in the word "fundamental" is an undefined concept, the method for determining the content and content itself with a strong imprint of the times. The Constitution established the fundamental rights in the course of fundamental rights in an important part of But they are not and should not be a basic right of all, otherwise, it will cause a constitutional stagnation and authoritarian predecessors of later generations. Therefore, the fundamental rights of the Constitution is not a closed matter of fact, logically self-consistent system It shows an open state. For example, the Korean Constitution Article 37, paragraph 1, states: "No to the Constitution did not specifically listed on the grounds of national freedom and rights of contempt." United States Constitution Ninth Amendment provides: "The enumeration in the Constitution, of certain rights shall not be construed to deny or neglect the people retain other rights." The U.S. federal court judge has said Goldberg: "bill of rights especially the right to not contain all the basic specific enumerated rights will be interpreted as a denial of the protection of other rights. "[30] At present, the basic rights of academics has formed a consensus on open architecture, recognizing the fundamental rights constitutional text exists outside of reality. But crux of the problem is that the basic rights of the national public authorities point to a right of fundamental rights also implies the existence of national accountability. If the recognition of fundamental rights beyond the constitutional text, then how to define its scope? of the range���ڿ���Ʊ�ʹ�ܷ���֮"����Ȩ��"���ֳ�һ�ַ�����״̬,���ջ���ع��ҵĸ�������Σ��������ά������ͳ�ε�����.���,���DZ�����ʶ��:"���Ż����ı仯�� �����Ŷ����˵����ϵ���в�ı仯������������Ҫ�����µ�Ȩ��.����,��Ȩ��ν����չ,ֻ��������Ȩ������˼���ֵ��Σ��,���������������Ȩ."[31]������ʵ������,�����ܷ�ѧ���۶Դ���������һ�����е���̬:һ��������ܷ��ı���֮"����Ȩ��"����ʵ����,��һ����Ը���δ�������ܷ��ı���"����Ȩ��"�ֳַdz�������̬��.�ڲ�����,ֻ���ܷ����л��ز�ӵ�жԸ���"����Ȩ��"���Ͽ�Ȩ,����,�ܷ����л���Ϊ��ά�����������þ�����ͳ��,����ͨ�����ܷ��ı����ھ����������"����Ȩ��"��������.
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