On The Constitutional Protection Of The Right Of Privacy

The objection of the dissertation is to discuss the constitutional protection of the right of privacy which is included in the basic human rights. Based primarily on the American and German protection theory and practice, this dissertation, from the universal human rights protection, discusses the history, foundation and effectiveness of the constitutional protection of the right of privacy carried out in foreign countries. It aims to provide reference to the research and system establishment of constitutional protection of the right of privacy in China, and make proposal on the constitutional protection of the right of privacy combined with situation in China.In the introduction, the dissertation presents the reason for the topic selected, research signification, method and content. The dissertation contains five parts. First, on the definition and the attribute of the right of privacy included in the basic human rights. Viewed from the basic human rights, the dissertation stresses that the right of privacy is the freedom right of private life which consists of the self-control of private information excluded of unlawful use, the self-domination of private affairs got rid of illegal intrusion, and the self-determined of private activities avoided of the invading of private secret. The right of privacy comprises not only the traditional, negative right exempted from the intrusion of state power, but also the positive .self-determined right surrendered reluctantly or compulsorily. Judging by right attribute, privacy is not only the individual spiritual right, but independent personality right, self-governed freedom right, and relative right in modern society as well. Second, Traced from the emergence of the legal protection of the right of privacy, the dissertation, demonstrates the insufficiency of the tort law protection of the right of privacy, and expects the inevitable progressing trend of the constitutional protection of the right of privacy. Compared the development of the constitutional protection of the right of privacy both in America and in Germany, the dissertation insists that in Germany the meaning of the right of privacy is narrower but the application is wider under generic personality rights, while in America the meaning of the right of privacy is wider but the application is narrower only limited in judicial review. Based on all these examples, the dissertation study further the international development trend of constitutional protection ofthe right of privacy. Third, on die foundation of the constitutional protection of the right of privacy. In viewed of western traditional culture and rule of law system, the dissertation analyzes that the individualism is the philosophical and ethical base, while the personality right protected by constitution is the legal base, the dignity of personality is the ultimate value base and the self-determined is the direct value base of the constitutional protection of the right of privacy. Fourth, on the effectiveness of the constitutional protection of the right of privacy. The dissertation in the first place discusses the alternative model of the protection of the right of privacy through constitution text. In constitution text, privacy is protected indirectly under the value article of personality dignity and self-determined freedom, or protected in generalized constitution text. The dissertation, on the basis of the enlarged effectiveness of the constitutional rights, indicates the multiple effectiveness of the right of privacy, in which the judicial remedy is the most nuclear effectiveness, and the judicial review is the strongest constitutional protection of the right of privacy. In the end of the dissertation, concerning the ponder of the constitutional protection in China. Because the civil law protection is insufficient, the constitutional protection is necessary in this case. In view of the situation in our country, we must perfect die constitutional protection of the right of privacy by establishing the direct effectiveness of privacy in the process of the establishment of constitutional system.In conclusion, the right of privacy must be the basic human right protected by constitution. The realization of the constitutional protection of the right of privacy must depend on the enlarged effectiveness of the right. The effectiveness lies on not only resisting the state power but also establishing the objective value which guides the common law protection of the right of privacy. While the judicial review is the most important content of the constitutional protection of the right of privacy.