Private Law's Protection For Human Rights

Due to the impact of the natural law, the need for social development and the requirement of the European Convention on Human Rights, many European countries are experiencing the constitutionalization of private law, and protection of human rights has had a significant influence on the development of private laws in European countries. As an important European country, Britain's private law practices have also been influenced by the protection of human rights. Especially since the Bill of Rights went into effect, human rights protection began to have a growing influence on private laws. In order to gain a comprehensive and deep understanding of human rights protection in private law and to provide a useful reference for constructing China's legal system and improving our private law practice, this paper uses cases from the British courts and the European Court of Human Rights to analyze issues around how Britain's protection for human rights has influenced its private law practices.The Introduction consists of several parts. First, it discusses the origin of this research question. Specifically, China's academic and professional community both pay attention to this problem, but they have not done enough research about it. In the meantime, significant developments have been achieved in the UK and other European countries in this field.Second, it summarizes and categorizes Chinese scholars' research around this topic, while combing the relevant foreign studies and highlighting several important documents. Third, it introduces research methods, such as case analysis, historical analysis, etc. Finally, it describes the innovations and the structure of the paper.Chapter One: Evolution and development of human rights protection. First, the paper introduces the concept of human rights, the development of human rights, which includes the historical evolution from natural human rights to legal human rights, relevant international conventions on human rights, the characteristics of basic human rights, and so on. Then, the paper introduces the general situation of human rights protection in Europe, including the development of regional conventions, such as the European Convention on Human Rights, the establishment of the European Court of Human Rights, and the basic situation of human rights protection in the UK, for example, the main content and effectiveness of Bill of Rights.Finally, after distinguishing between public and private law, this paper briefly discusses thesituation of protecting human rights in private law in general.Chapter Two: Jurisprudence practices of human rights protection and their influence on private law practice. Since human rights law is mainly developed from cases, and Britain is a common law country, case analysis serves as the main research method in this research. A separate chapter is written to introduce and analyze Britain's jurisprudence practice in this area. This paper introduces cases by different categories, including cases on protecting privacy, cases on protecting property, and cases on protecting other human rights such as freedom from discrimination, freedom of expression, and freedom of religion demonstration.This paper originally plans to divide the cases into two types: personal rights and property rights. Because the right to privacy is the most prominent type of rights in this area in the UK,a separate chapter is described and analyzed, given its large volume of content.Chapter Three: This paper lists the ways of which Britain's protection for human rights has influenced private law as below. First, the British court has the right to issue declarations on regulations that are inconsistent with the Bill of Rights, but the declarations do not affect the effectiveness of the regulations. Second, the British court rules on private law disputes based on common law and statutory provisions. It tries to interpret relevant laws and regulations in ways that are consistent with the provisions of the Convention on Human Rights, and it changes the development of the common law in an orderly and gradual manner,based on the Bill of Rights provisions and the Court of Human Rights' jurisprudence practices.The third way is by expanding the scope of public bodies, and turning some of the units for performing public functions to hybrid public institutions for protecting human rights.Moreover, the European Court of Human Rights supervises and reviews member states like Britain's statutes and court hearings on private law cases by individual complaints mechanism.In addition, the main categories of which Britain's protection for basic human rights has influenced private law include: rights that are not effectively protected before begin to receive protection, such as privacy protection; in the adjudication of disputes, rights that are ignored before are reviewed again, such as adverse possession and protection for the parties' property rights in consumers credit cases; to re-examine whether the amount of certain human rights is correctly measured in the process of balancing conflicting rights or interests, such as the right to freely demonstrate religious freedom; with the transformation of the society and people's awareness, some of the suppressed human rights began to be effectively protected, such as theright to marry and to have a family for transgender people, and the scope of human rights begin to expand and improve, such as protecting individuals' privacy, houses, and family lives in Article 8 of the Convention on Human Rights.Chapter Four: Human rights protection's influence on private law practice. First, the principle of proportionality is used frequently in labor dispute and reviewing the statute, and principle of dual proportionality that is in accordance with the characteristics of private law disputes is developed to avoid relevant measures or referees constituting a disproportionate interference with and restrictions on some particular human rights. When the court cannot adjudicate in strict accordance with the traditional private law and needs a comprehensive balance, the principle of proportionality can help structure the analysis process, to improve the predictability and stability of the adjudication to a certain extent, and can prompt the best balance between private law's goal of protecting human rights and other factors. Second, the Bill of Rights modifies Britain's precedent rule to some extent: Britain's House of Lords can subvert its original decision to follow the opposite decision that is made by the European Court of Human Rights; Britain's Court of Appeal can refuse to follow its past decisions that are not in line with the jurisprudence of the European Court of Human Rights, but generally it should follow the decision of the House of Lords, and primary courts are encouraged to adopt leapfrog strategy. Third, through the use of dynamic models of legal interpretation and the interpretation methods for protecting human rights, when the British courts are using the standards and concepts of human rights conventions, it also concerns itself with and pays attention to changing values and societal development, responds to the real concerns of society timely, and at the same time maintains a relative balance between protecting the rights guaranteed by the Convention and maintaining a legal certainty. Finally, the protection of fundamental human rights also influences the delimitation of UK's public bodies' areas of responsibilities.Chapter Five: Positive and negative impacts of the UK's private law protection for human rights. First, the paper analyzes and discusses the positive impacts that human rights protection has on private law. Human rights' indirect horizontal effects provide the appropriate regulatory framework for private law reasoning, and it combines requests for justice among individuals with the personal commitment to social morality. Second, when policy factors and all types of schools of thoughts are influencing private law's referees and hybrid reasoning has become the mode for private law trial, the goal of human rightsprotection lies in examining the internal trends of pursuing policy considerations by sacrificing personal autonomy or positive freedom in current hybrid reasoning. Moreover, the protection of human rights as an effective judicial control method helps balance various factors' in policy considerations, emphasizes the protection of individual rights, especially provides effective reliefs for the neglected human rights, and corrects the imbalanced situations of conflicting interests. Additionally, human rights as a source of inspiration add new viewpoints to the traditional dogma of private laws, and obtain the ways to achieve legal goals through effective checks and balances.Protecting basic human rights also has its concerns and negative impacts on private law.First of all, the protection of human rights in private law may constitutes as a threat to the core freedom of private ownership and easily erode personal autonomy. Second, values reflecting human rights need to be transformed to meet the principles and concepts of the private law. Also, the provisions on human rights are generally more abstract, vague, and only provide limited guidance; and the protection of human rights in private law may lead to unpredictable results, which affect legal stability and consistency. Moreover, the protection of human rights can become a political football between freedom and paternalism, and these rights do not include answers to many issues that are raised during the struggle, and they do not necessarily enrich the private law process. In the meantime, the domestic court and the European Court of Human Rights' legitimacy and ability to examine private laws' protection of fundamental human rights have also been questioned.Chapter Six: Analyze the relationship between protecting human rights and private law from the perspective of comparative law. The private law's protection of human rights in other European countries. The private law's protection of human rights occurs during the trend of constitutionalizing the private law in Europe. In order to understand this problem more comprehensively and accurately, the paper also introduces and analyzes the situations of other European countries as well as regional courts. Germany has always emphasized on the protection of human rights in private law, and there has been a trend of private law subordinating to basic human rights; although the disputes between the parties are disputes over private law in substantive and in procedural terms, sometimes private law is only implementing the trial outcomes of the Constitutional Court in its own range. Although the Netherlands recognizes the horizontal effects of the human rights, in practice the Dutch courtoften takes into account the human rights principles on the basis of private law, and respects the decision of the court referee under private law. The European Court demonstrates its reluctance to get involved with politically sensitive topics, and holds a cautious attitude toward letting protection for human rights influence the private law. Through individual complaints mechanism, the European Court of Human Rights can review the laws and court decisions of its member states, and in fact have the ability to intervene in any private law disputes.The relationship between human rights and private law is worth exploring. According to the theory of a single framework and a common framework, the relationship between human rights and private law includes subordinating and complementary ones. Private law's subordination to human rights means that by weakening private law's ability to regulate the relationships among private bodies according to its theoretical systems, as well as turning the private law into a tool for improving human rights, provisions of human rights fully control the private law. The complementary relationship of human rights and private law suggests that private law that regulates relationships among private bodies would not be replaced by the provisions of law on human rights; it will not lose the ability to regulate the relationships among different private bodies according to its own logic; and the relationships among private bodies is still standardized and controlled by private laws. In the complementary mode,private laws are in charge of deciding how to reflect and encompass the values of the provision of human rights. Human rights impact private law, while private law affects the ways of which human rights affect private law. Although Britain is a rising star in the field, its pattern provides a reference for forming a complementary relationship between human rights and private laws--the values of human rights are introduced into private laws by weak and indirect horizontal effects and weak constitutional review, and allow the court to balance all kinds of conflicting interests in order to reasonably protect human rights; during the process,courts can transform the rules of law based on the modern values entailed in human rights,while upholding principles, concepts and referee rules of private laws to avoid the unexpected and ill-considered impact and destruction to the private law system.Finally, concluding remarks summarize the main contribution of the paper, and they point out the cases involving the protection of the constitutional rights that have appeared in China's referee in private laws. It also shows that elaborations on and suggestions for dealingwith China's specific circumstances are not suitable here, since they are not the main research subjects of this paper. Instead, this paper aims at providing an useful reference for constructing legal system and improving private law practice in China, through analyzing and discussing the European countries', such as Britain's private laws' protections for human rights.