摘要
宪法基本权利具有防御国家的主观性权利和客观法规范的双面性,其效力亦扩散于私法领域。在具体的司法实践中,围绕宪法权利与民事权利的不同特性与法理联系,司法适用过程主要从三个结构层面上展开。但对于我国在私法领域中直接适用宪法权利规范的合理性需要进行反思,确定宪法介入私法领域的方式,在本质上是要明确宪法价值的取向。针对我国法治进程,主张应在司法实践中致力于通过对私法概括性条款的合宪性解释,来促进宪法基本权利规范在私法领域的生效与遵行,以最大限度地保障和实现公民的基本权利。
Our daily life sees the frequent infringement of citizen's fundamental rights among private individuals. With the absence of common laws and regulations, can the judge mete out judgment in accordance with Constitution in such cases? Hereby we have the issue of application of constitution in private law sphere. The traditional constitutional theory holds that the fundamental rights are the citizen's rights against government. And constitutional rights have no effect over the disputes among private citizens. However, with the changes in economic conditions and social structure, more and more cases have appeared in which the fundamental rights are subjecting to violations among private individuals. To deal with such situations, the German Federal Constitutional Court turns the fundamental rights into an abstract objective order of values, in that way the constitutional rights are given dual characteristics. An issue arising from such a practice is a controversy between ″direct effect theory″ and ″indirect effect theory″ regarding the way the judge makes application of the constitution. However, all countries have been extremely cautious and strict in application of constitution in private law sphere. Specifically speaking, in judicial process of protecting the fundamental rights, the judge must make a clear differentiation of the relations between constitutional rights and civil rights, which mainly present themselves in the following three areas: first, the difference in the legal relations to be adjusted; second, the difference in tendencies towards the key components of rights; and third, difference in targets of rights obligations and ways of their realization. In light of the current situation in China, however, studies are still needed of the rationality of direct application of constitution in private law. From the point of comparative law, the issue was not put forward in western countries until a fair maturity of constitutional practices and theories was achieved;next, the lawful order in the West depends on the formations and maturity of a civil society; furthermore, it is not conform to the intrinsic requirement of China's current political system. Finally, technical problems remain in the judge's direct application of constitution in private law area. Under such circumstances, it is advisable to render fundamental rights functional in private law relation by way of constitutional interpretation and realize indirect application through value infiltration. Meanwhile, the general clauses in private law can be seen as a cut-in point for fundamental rights. Judges are also required to give full display to judicial initiatives.
出处
《浙江大学学报（人文社会科学版）》
CSSCI
北大核心
2004年第6期77-86,共10页
Journal of Zhejiang University:Humanities and Social Sciences
关键词
国际移民法
国籍冲突
一人一籍原则
外交保护
双边协定
Fundamental right
Objective order of values
Private sphere
Constitutional interpretation
