| In "the age of rights", the study of rights has become one of the hot topics in law. This paper, in the view of the history of rights, will explain the mode of the fundamental rights in modern society from the perspectives of value, norm and security. What’s more, the paper will also analyze the intrinsic and external mechanism of the transition of rights and discuss the factors that restrict the realization of the fundamental rights in modern time so as to use it for reference for the present society. Apart from the introduction and conclusion, the whole thesis consists of four chapters.The first chapter is a research focusing on the value of fundamental rights. Firstly, it gives an analysis on the introduction and establishment of the idea of fundamental rights in recent and modern China. The notes taken abroad by the ambassadors, the HK businessmen’s perception of business and the translation of the foreign laws made the Chinese begin to accept the word "right". The businessmen were shrewdly aware that interests could be transformed into the discourse of rights and the power could be obtained through appeals for human rights. Therefore, the businessmen gave the "rights" a kind of intellectual reconstruction and a matching with the power expectations, in result, forming a new kind of "rights" with a localized appearance and a politics-based core. Secondly, it analyzes the hierarchy differentiation towards the idea of the fundamental rights in the period of "Ready for constitutionalism". The idea of the ministers having been abroad typically belonged to the dominating type, whose essence was to strictly penetrate the restriction laws and write the "rights" down on the papers; the idea of constitutional advocators belonged to the deeply worried type. If freedom was favorable to make the country rich and powerful, they would support freedom, and if despotism was favorable to strengthen the country, they would oppose freedom, whose essence of rights was the right to participate in public affairs; the idea of the revolutionary belonged to the typically rebellion type, whose goal explicitly aimed at subverting the existing government, therefore, the essence of the rights was revolution. Thirdly, it analyzes the development and variation of the idea of fundamental rights in military stage. In this period, though there were two opposed groups with different attitudes toward freedom with a lot of speech warring, they still had something in common, that is, they were both for the purpose of the nation’s development and in their view, both striving for rights and renouncing were "immoral" and they both endowed rights with some compulsory requirements based on the one-dimension value. Therefore, both sides together impelled rights into the "canyon" of morality. Lastly, it analyzes the tendency to "doctrine" and characterization of the idea of fundamental rights in constitutional period of the Kuomintang. Kuomintang, the Communist Party and people of all kinds in intelligentsia were all wild about establishing their own theoretical system, talking about the "doctrine" and firmly carrying on it. In this kind of context, the right had lost its independence and became the dependency of the higher or other values. It might be divided based on "class" or "friend or foe", it might be transformed according to "revolutionary process" or "revolutionary centre" and it also might be "endowed" or "deprived" according to struggle needs. Substantially, it became one of the "fruits of victory" shared attached to requirements and deadlines.The second chapter is a research focusing on basic norms of rights. Firstly, it sorts out the system the right of freedom in basic laws in modern China. On one hand, it compares the transition of the norms of the right of freedom in basic laws; on the other hand, it tries to find out the variation of the right of freedom in empirical laws. Compared with the early system of the right of freedom in the west, our system is similar in types and content, whereas less procedural formulation leads to over briefness and vagueness of the norms. Besides, mostly indirectly secured by laws, the norm of rights in basic laws is actually a kind of "decoration" and what really ensure the rights are various laws and regulations. The hypostatic empirical method is usually the direct implement of the will of the ruling class and also the direct norm of social behavior pattern, so in empirical laws freedom and rights have made a essential change. Secondly, it clears up the pedigree of suffrages in the basic laws in recent and modern China. After comparing the transition of suffrages and finding out the transition of suffrages in empirical laws, we can come to a conclusion that in electoral law, setting restriction on candidacy, special selection or direct designation has actually deprived most people of their suffrages. Thirdly, it clears up the pedigree of beneficial rights in the basic laws in recent and modern China. Through comparing the transition of the norm of beneficial rights and proving the embodiment of it in empirical laws, we find that the lack of hypostatic laws will affect the realization of beneficial rights. Lastly, it clears up the pedigree of social rights. Through comparing the transition of the norm of social rights and proving the realization of it in empirical laws, we come to a conclusion that the realization of social rights depends on the "activity" of the country and at the same time, the country will master the "activity" of rights. The service to the regime was given much attention to and the beneficial input is passive and sluggish, for which the social rights were swerved.The third chapter is a research focusing on the foundation for basic rights. Firstly, we analyze the relation between administrative control and the foundation for basic rights. The situation analysis of civil liberty under the administrative control of the government reveals that the government of modern China has no awareness of not interfering with civil liberty, not to mention its function of security. But rather, the government actively penetrates, invades and even deprives civil liberty. Abundant administrative regulations set limits to civil liberty, so there are no rights in legal dimension; compelling administration consistently encroaches civil liberty, from domination through supervision to overall control. Therefore, rights actually are transformed into legal obligations and obedience without alternative; in addition, abuse of illegal ruling means of violence causes arbitrary deprivation of civil liberty, not to mention its security. Then, there comes the analysis of the relationship between judicial relief and security of civil liberty. In modern China, major problems are solved in administrative control and only minor problems undergo judicial process. Nevertheless, under the circumstance of poor procedural protection, dependent judicature and lack of unconstitutional review, damaged rights can hardly receive just correction, no relief implies no rights, thus we can have a clear glance of the real situation of the possession of citizens’ fundamental rights. The forth chapter is a research focusing on the change mechanism of basic rights in recent and modern China. Firstly, it analyzes the relation between social background and the transition of rights. It was the interaction between traditional culture, political concepts and social events that reconstructed and modeled the rights in Chinese type. Secondly, it analyzes the relation between ideology and the change of rights. In the background of the national crisis, the influence of nationalism is very strong. Liberalism is difficult to survive because of the "congenitally deficient" and "acquired disorders". The rights-based idea can not deal with the turbulent social contexts, so it can not be accepted. Lastly, it analyzes the relation between social contexts and the change of rights. When the monarchical power declines, the appealing for rights becomes very active; when it is in the period of military dictatorship, the state of the rights are often in a "uncertain" place and the illegal violence makes the legal rights exist in name only. Under the smashing Party Power, civil rights are taught, guarded, represented and in essence, restricted.The conclusion part concentrates on summarizing the "short slab" of the basic rights in recent and modern society. In the idealistic level, the liberty of the nation and the liberty of a group always govern the personal freedom and when the right is moralized, it lose its "autonomy" and becomes the dependency of other values; in the legal level, laws and regulations are the true standards of social behavior model, and constitution is just the implement of political resources. Thus, the basic rights in the constitution are enslaved to laws and administrative emergent power; in the empirical level, the mighty government power and weak judicial relief both make the basic personal rights in an unprotected situation.View one:The thinking model of power standard reconstructs the state of the rights in recent and modern China; right is the derivant of power and has no independent value.View two:In the late developing countries with a deep national complex, liberalism is not able to survive and collectivism controls the cognition towards rights.View three:In modern China, citizens’ basic rights are restricted by laws, administrative emergency power, governments’ initiative and the lack of judicial relief, which actually means no rights.View four:according to overriding by national rights, empirical laws and executive power on rights and weakness of judicial relief, this thesis argues that there is a "short slab" in the system of rights in modern China. The formation of "short slab" can be attributed to influence of traditional cultural model and helplessness under the situation of social survival."Short slab" phenomenon is an important way of culture reconstruction in the process of legal transplant and imitation. |
PDF Full Text Request