First, the emergence of private domain effect is necessary to solve practical problems.
The second chapter of our constitution stipulates the basic rights and obligations of citizens in the form of a special chapter. Articles 33 to 50 cover six basic rights and freedoms, such as the right to subsistence, the right to development and the right to equality, and other articles also touch on it sporadically, such as the private property right in Article 13. For the understanding of basic rights, traditional constitutional theory holds that they are a barrier for individuals to resist the public power of the state and are not legally binding in the field of private behavior. However, with the development of the times, the traditional dual pattern of "citizen-state" began to loosen, and the incidents of infringement of basic rights by third parties gradually increased. At the same time, the awareness of civil rights has gradually awakened, which has given birth to the realistic demand for basic rights to expand the private sphere.
(A) the imbalance of private subject status leads to the private foundation of others.
Violation of this right
The modern constitution was born in18th century. In the early stage of its development, private social relations were relatively simple, individuals were equal, and private law was autonomous. However, with the progress of the times, the market economy with free competition has gradually produced its negative effects, such as monopoly, imperfect competition, polarization, etc., resulting in an increasingly unbalanced equal status among civil subjects. Some private subjects have a large number of social resources, so they can override other subjects. This structural change of private society is also reflected in the protection of basic rights by the Constitution. There are more threats from third parties to the realization of some basic rights in the fields of personal employment, transaction and consumption. In the Qi Yuling incident, which is known as the "first case of constitutional justice" in China, the defendants Xiaoqi Chen, Chen Kezheng and Shandong Jining Commercial School used their social status and superior resources to impersonate the plaintiff to enter school or even get employment. At the same time, in modern society, the functions of the state have begun to undergo structural changes, and private entities that undertake some public functions have emerged constantly. Social organizations such as workers and young women, trade associations such as lawyers' associations, enterprises and institutions such as schools, and grass-roots mass autonomous organizations such as villagers' committees can undertake specific administrative functions under the authorization of laws and regulations, while social organizations, enterprises and institutions and even individuals that meet the statutory conditions can exercise some administrative functions under the entrustment of administrative subjects. Therefore, in the field of private law, in addition to maintaining the basic equal status among subjects of ordinary private law, private subjects who undertake some public functions and master superior social resources appear and gradually increase, which is seriously out of balance with other private subjects, thus greatly increasing the probability that basic rights are infringed by third parties. Therefore, while emphasizing the sanctity of basic rights, we should not only be alert to the infringement of public power, but also pay attention to the intrusion from the third party, and seek specific countermeasures, that is, the private application of basic rights.
(2) The improvement of people's awareness of rights and the lack of civil rights legislation are gradually contradictory.
For a country's modernization, the rise of the concept of rights and claims is an irresistible historical necessity, and this law is also reflected in the process of socialist rule of law construction in China. At present, people's awareness of rights in China has gradually awakened and improved, thus making China society enter the era of rights.
Recent practice has proved that it is also academic common sense that basic rights are infringed by a third party and should be remedied. In judicial practice, people have a psychological dependence on the right to protect their legitimate interests, and this dependence has also become a psychological stereotype. All reasonable interests are called rights, which leads to many new rights demands in China. Among them, there are many cases involving basic constitutional rights, such as the right to equality, the right to education and the right to freedom of marriage. Basic rights refer to rights that are vital to citizens or natural persons. Compared with those types of rights that are not defined as basic rights in the Constitution, they should be more absolutely protected. To restrict and deprive them, we must meet more stringent conditions. When the basic rights are infringed by a third party, it will obviously be a great irony to the basic rights provisions of the constitution because there is no clear provision for effective relief in the civil law.
Second, the application of direct effect theory and indirect effect theory in the private sphere
On the question of whether the basic rights clause of the Constitution can exert legal effect in the private sphere, the academic circles in China have experienced a transition from early support for direct effect to current support for indirect effect. In the 1980s and 1990s, the discussion on the application of the private domain of the Constitution was relatively simple. Scholars generally believe that the constitution is a law, so it is of course applicable, so the provisions of the basic rights of the constitution can be directly quoted in civil cases without the need to pass the civil law. In recent years, with the influx of theoretical theories from the United States, German and other countries, China academic circles have turned to accept the theory of indirect effect as a general theory, pointing out that basic rights must act on the private sphere through the general provisions of civil law or uncertain legal concepts. Both the theory of direct effect and the theory of indirect effect are based on the analysis of the nature of basic rights. On the basis of adhering to the traditional characteristics of public rights or subjective rights, scholars try to explain that basic rights still have the attributes of private rights and objective rights.
(A) the public and private nature of basic rights and the theory of direct effect
The civil law is called the Charter of Rights, while the Constitution is the Charter of Rights. Between civil rights and civil rights, some rights overlap in name, forming so-called cross rights, such as life rights, property rights, personality rights and so on. As for other basic rights that have not been confirmed by civil legislation, some of them are directly applied as private rights, such as freedom of speech and association in Weimar Constitution, prohibition of slavery and forced labor in American Constitution, equality and education in China Constitution, and so on. In view of the confusion of names in the above legislation and the actual confusion in judicial practice, early scholars read the wrong signals from it, trying to prove that the basic right as a public right also has the attribute of private right, and on this basis, put forward the theory of direct effect of its private domain application. Based on the legal nature of the constitution, some scholars believe that the constitution is the fundamental law, and public law and private law are homologous, which can be said to be a comprehensive law in nature. Therefore, the basic rights protected by the Constitution are also a mixture of public rights and private rights. When a third party infringes on basic rights, the people's court can make a judgment directly according to the Constitution. Based on the absoluteness theory of basic rights, some scholars believe that basic rights have the value of transcendental law in essence and are the basic principles of the whole legal order that both public law and private law must follow. Therefore, its provisions should not distinguish between public law and private law, but some scholars directly apply to the relationship between private people, directly talk about the decomposition of the content of basic rights, and think that basic rights have the dual attributes of public rights and private rights, and as a right in public law, they are abstract countries.
It is true that the basic rights of the Constitution have a certain meaning of private rights, which is more or less related to the civil rights recognized by the civil law system. Defining a right as a basic right in the constitution does not mean that it is no longer a right in the sense of civil law, but it does not mean that a basic right has two diametrically opposite attributes, namely public rights and private rights. Even for the right to life and health with the same or similar names in the field of constitution and civil law, there are obvious differences in their meanings and specific contents, especially for the subject. In civil law, this right is advocated by individuals, and the right is the same as the other party's way of fulfilling its obligations. On the other hand, the basic rights in the constitution point from the individual to the state, and the latter performs its obligations mainly by positive behavior, supplemented by negative behavior. Taking the right to education as an example, public power should not be improperly violated, but should be guaranteed and promoted as much as possible, such as creating necessary good conditions for citizens' study and education according to law, and the implementation of the national compulsory education system and various educational inputs are all manifestations of their positive obligations.
(B) the subjective and objective nature of basic rights and the theory of indirect effects.
As mentioned above, the basic rights of the Constitution cannot be confused with the rights of private law. It is obviously inappropriate to explain the basic rights of the constitution with the attributes of public rights and private rights, thus cutting off the direct effect of the private application of the basic rights of the constitution. However, in the face of more and more violations of basic rights by third parties, we must not sit idly by. The obvious, undamaged and non-transferable rights are the foundation of every human society, which cannot be simply regarded as nothingness in the legal relationship of private law [7](P23). There are still relevant remedies for the infringement of ordinary civil rights by the third party. The basic rights are so important that it is necessary to clarify their legal remedies. In the process of discussing the private domain effect of the basic rights clause of the constitution, scholars re-start, re-divide it into subjective rights and objective value order on the basis of recognizing it as public rights, and put forward the theory of indirect effect on this basis. The theory of subjective and objective attributes of constitutional basic rights originates from German constitutional theory and practice, which means that basic rights are the subjective rights of individuals to resist the infringement of state public rights. The normative basis is the fourth paragraph of Article 19 of the German Basic Law, "Anyone whose rights are infringed by public rights can bring a lawsuit to the court"; On the other hand, basic rights also have the attribute of objective law, and as an objective value order that the Constitution strives to maintain, they bind public power organs, just as the third paragraph of Article 1 of the Basic Law stipulates that "basic rights bind legislation, administration and justice and become direct and effective rights". Under the theory of duality of basic rights, German constitutional theory and practice have constructed an exquisite, strict and orderly basic rights protection system, which makes state power and even the whole social life integrated on the basis of basic rights with personal dignity as the core. The subjective nature of basic rights is a shield, which cannot be extended to the field of private law. But as an objective value order, it can be derived to have an effect on the private sphere. In addition to observing this order, the operation of public power should be maintained and improved by all means, including national legislation, judicature and even law enforcement agencies. When faced with the fact that basic rights are infringed by third parties, they should give necessary relief based on public power. Compared with the "night watchman" role of public power in subjective rights, the objective nature of basic rights obviously requires public power to go further. It should promote the realization of citizens' basic rights in a positive way, and when its realization is blocked, it mainly means that when it is blocked by a third person who is also a private subject, public power should intervene and set things right, thus maintaining the existence of basic rights as an objective value order.
Third, the affirmation and correct understanding of indirect effect theory.
The proposition that the basic rights clauses of the Constitution have the cohesive effect does not subvert the traditional view that constitutional rights are mainly public rights against the state or public power, but on this basis emphasizes that only by guiding the specific interpretation of general clauses and uncertain concepts in private law norms can the basic rights be brought into play, and the public law nature of the Constitution can be upheld, the autonomy of private law can be maintained, and the basic rights of citizens can be protected from infringement, thus being adopted by legislation and practice in various countries. However, Chinese academic circles have never stopped questioning the indirect effect. For a long time, the basis for denying the private effect of the basic rights clause of the constitution has been that the judicial application of the constitution will inevitably lead to the interpretation of the constitution by the people's court, and the power of constitutional interpretation in China belongs exclusively to the National People's Congress. However, many scholars who accept the indirect effect theory also have some misunderstandings or deviations. Scholars mostly analyze the objective normative attribute of basic rights from the formal sense, so the understanding of indirect effect is still superficial.
Faced with this situation, it is necessary for us to make a substantive analysis of the objective attributes and indirect effects of basic rights. The objective value order established by the basic rights clause of the constitution requires state organs to ensure the realization of citizens' basic rights through political, economic and cultural means. The state organs here naturally include the people's courts as judicial organs, and the means must also include legal means. In specific judicial decisions, the basic rights clause of the Constitution should constitute the highest guiding principle for judges to interpret the law. The main basis for the indirect effect of constitutional basic rights clauses is still the general clauses or flexible legal concepts in civil law, which can only show that if civil judges need to explain the general legal clauses and abstract legal concepts in civil law when judging cases, they can use the guidance of constitutional basic rights clauses to decide whether litigation cases should be included in the scope of rights and interests protected by civil law. The constitution is not cited as a legal authority or source, but must be considered in legal interpretation, and it is the ultimate basis for legal reasoning and legal interpretation. At this time, the object of interpretation is the general provisions or uncertain legal concepts in civil law, not the constitution itself. The Constitution is only used as a benchmark for interpretation, so it does not violate the current stipulation that the right to interpret the Constitution belongs to the National People's Congress. In the methodology of law, we might as well call it constitutional interpretation. It uses the basis of interpretation (namely constitutional text) to determine the object of interpretation (namely the meaning of departmental law in specific cases), rather than directly explaining the basis of interpretation, which is also the difference between it and constitutional interpretation [10](P403). In the process of indirect entry into force, the basic rights provisions of the Constitution provide explanatory resources for the flexible legal concepts or general legal provisions of civil law, making the judge's discretion more convincing. In essence, the legal basis of case handling is still dominated and focused on civil law. Facing the problem of constitutional privatization, indirect effect can be said to maintain the boundary between public law and private law. The indirect effect of replacing constitutional interpretation with the methodology of constitutional interpretation still belongs to solving private law problems within a complete private law system.
Considering the basic rights clauses in our constitution, there is room for private domain application in wording and sentences. The text of the Constitution does not clearly stipulate that the Constitution is only legally binding on state institutions. On the contrary, it points out in some rights clauses that third parties may not infringe upon citizens' basic rights. For example, the Constitution clearly stipulates that "any state organ, social organization or individual" or "any organization or individual" shall not infringe upon freedom of religious belief, freedom of communication and communication secrets. In combination with Article 33, paragraph 3 of the Constitution, "Every citizen shall enjoy the rights stipulated by the Constitution and laws, and at the same time shall perform the obligations stipulated by the Constitution and laws", we can know that although the Constitution does not explicitly stipulate that individuals shall not infringe upon other basic rights and freedoms, private subjects shall not get their hands on their enjoyment and exercise. When we examine the actual operation of the current law, we can find that it is not uncommon for the court to interpret the judgment of civil cases with the help of the basic rights clause in the judicial practice. Different from criminal cases, the court should not refuse to judge civil and commercial cases because there is no explicit provision in the law. Judges often need to give full play to their judicial initiative when they encounter unfounded claims of the parties in the adjudication of cases. It is true that legitimate rights should be supported, but civil interests without legislation are not all unprotected; When a judge meets an interest that should be protected by law (such as the right to education), in order to effectively demonstrate why this interest must be protected in this case, the judge will unconsciously want to "righting" this interest.
In the process of this argument, because civil legislation does not put interests on the cloak of rights, but is confirmed by the basic rights clause of the constitution, the judge will soon issue a constitution, which makes the protection of interests look full of legitimacy. This is understandable, on the contrary, it is an effective way to deal with similar problems at present. For example, in the case of Shangmou v. Li Mou and Jincheng Central Branch of a property insurance company in China, the plaintiff claimed that his right to education was infringed because the defendant Li Mou injured him and hired a substitute teacher to make up for the loss, thus claiming that the defendant should compensate him for the tuition fee. In this regard, the court cited the constitutional provisions on citizens' right to education to help explain the connotation of personal injury compensation, thus supporting the plaintiff's claim. Practice tells us the truth. When the academic circles still have doubts about the convergence effect between the basic rights clauses of the Constitution, the court gave a positive answer through the trial of cases in practice. From the perspective of empirical analysis, the existence of indirect effect theory has become an indisputable fact.
Fourthly, the theory of indirect effect and the perfection of civil rights system.
At any time, the legal provisions of the constitution can not be directly applied to civil trials, otherwise it will subvert its public law attributes and confuse the boundaries between public law and private law. On the other hand, the constitution's provisions on citizens' basic rights usually have the nature of a declaration, without specifying the specific content of a right and the remedies for infringement, which also determines that it can only play an indirect role through the guidance of civil legislation.
As mentioned above, the essence of the private domain effect of the constitutional basic rights clause is how to protect the interests that are not stipulated by legislation in the constitutional basic rights clause. In order to resist the application of constitutional provisions, scholars have put forward many solutions, the most typical of which are parasitic cause of action theory and presumption of rights theory. The former thinks that the interests that should be recognized by law but not clearly protected by civil law can be parasitic on the relevant civil rights that have been recognized by civil law, and the rights can be guaranteed and maintained by the rules of the latter; On the other hand, the latter advocates that it should be presumed as a right clearly stipulated in civil legislation on the basis of similar connotations, and its right exercise and relief system should be applied. Although the names are different, they all achieve the same goal in essence, that is, to solve problems by expanding the connotation of existing civil rights. However, the extension of legal rights itself is limited. With the diversification of case types, expanding the existing legal concepts will not only lead to difficulties in reasoning based on parasitism and presumption, but also lead to substantive denial of the boundaries of legal rights. In fact, the civil rights system is advancing with the times. Many interests that have not been confirmed by legislation have finally become legal rights through individual rights appeals and court confirmation in practice, and have been confirmed in the process of legislative formulation and revision. The theory of parasitic cause of action and presumption of rights is put forward to strictly abide by the original right system, which greatly reduces or even obliterates the possibility that rights will gradually rank among the legal rights after practical testing, which obviously does not meet the opening requirements and development needs of the right system.
When the basic right is also a private right explicitly protected in civil legislation, the people's court can emphasize the fundamental significance of this right relative to the right subject by citing the basic rights clause of the Constitution and strengthen the demonstration effect; However, when civil legislation does not specify basic rights, it is necessary to fill legal loopholes with uncertain legal concepts or general legal provisions, and the basic rights provisions of the Constitution can play a more important role. With the help of the constitutional interpretation of basic rights clauses, legal concepts or general clauses, rights and interests that were not confirmed in the original civil law can be created in the judicial process, which can make the handling of cases have a more solid legislative foundation and strong legal support. Through constitutional interpretation, the court injects the meaning of basic rights norms into abstract legal provisions and protects citizens' basic rights by applying laws, which is self-consistent in theory. Early scholars who opposed the application of the private domain of the Constitution believed that the private law remedy for the right to education could be demonstrated by expanding the interpretation of Article 120 of the General Principles of the Civil Law, that is, the so-called theory of parasitic cause of action, but in fact, this article belongs to a clear list of protected objects, covering only the rights of name, portrait, reputation and honor, as well as the whole third section "Civil Liability for Tort". However, after the promulgation and implementation of Tort Liability Law, the discussion on this issue has a new angle and significance. According to Article 2 of the Law, its coverage includes personal rights and property rights such as the right to life, health, name and reputation. As the name implies, "right" includes rights and interests, while the word "equality" means that it is not exhaustive. Both can be extended at the discretion of the judge. In the judgment of the German Leserbrief case, the "other rights" in Article 823 1 of the German Civil Code were used to protect the two basic rights of "personal dignity" in Article 1 of the Basic Law and "free development of personality" in Article 2 1. It is precisely because of the promotion of similar cases that the emerging personality legal interests are constantly tested by the constitutional value and enter the empirical field of private law, thus making personality rights as a new type of civil rights rich and relatively independent, further promoting the perfection of German civil legislation and rights system. Civil rights are the basis and important content of civil activities. With the progress of society, the relatively closed civil rights system and people.
There is a contradiction between the rising awareness of rights. The reconciliation of this contradiction can realize the judge's discretion with the help of uncertain legal provisions and legal concepts in legislation, but its final solution can only rely on the enrichment and development of the civil rights system. When confirming and creating civil rights through laws, it is difficult to say that legislators created them out of thin air; Throughout the history of civil law in various countries, many specific civil rights originated from people's new demands for rights in the process of their emergence and development, and then were recognized by civil judicial discretion. After the accumulation of typical cases and repeated practice verification, it was finally included in the scope of civil legislation and ranked among the legal rights. The declaration of the basic rights clause in the Constitution and its indirect effect are precisely to demonstrate the protection of a civil right from the perspective of value judgment, so as to support this right at the height of the basic law, and finally be confirmed by specific legislation through practical development, thus promoting the continuous expansion of the scope of civil rights and becoming one of the driving forces for the improvement of the civil rights system.