A Study On The Constitutional Rights Of Children

The Constitution Is Bible Filled With People's Rights; Protection Of Human Rights Is A Core Value Of Modern Constitution. In Modern Times, Children's Rights Have Been Recognized By The Majority Of The Constitutional Text, However, The Study Of Children's Rights Often Have To Face Such Doubts Or Question:Is It Real That Children Have Rights? Whether The Concept Of Child Rights Is Simply Duplicating Existed Concept Of Rights? If The Rights Of The Children Are A Real Existence, What's Its Basis And Value? Are The Rights Of The Children Necessary To Their Survival And Development? In Contemporary Debates On Human Rights, The View Which Advocate That Children Have No Right Theory, Children's Rights Are Useless, Or Harmful Has Had A Large Market. As A Mainstream Battlefield Of Human Rights Research, Constitution Is Necessary To Issue Its Own Clear Voice. However, it's Regrettable That the Issue of Children's Rights is largely forgotten By the Chinese Constitution-Our Constitutional Scholars Had Little Attention to Children's Rights, Often Been Referred Superficially, Gently Tracing and Readily Thrown Unnoticed Corner. In Fact, The Of Children's Rights Is Only Not A Political Rhetoric Option, Nor Is Fancy "Girl" Dress, Its Emergence Is The Product Of The Selection Of The History And Construction Of Society, Which Has Inevitable Historical Value And Rationality. It Is Not Only A Matter Of Personality And Survival And Development Of Children, But Also Has Relation To A Radical Reconstruction Of Human Social Relations, To Reshape Constitutional Human Rights Theory.Following This Judgment And Thought, This Paper Attempts To Do Some Preliminary Exploration, Basing On The Text Of The Constitution, And Using The Hermeneutics Method, To Several Key Issues:And How Did Children's Rights Emerge And Develop In The Constitution? What's Trend? How Do Children Get Subject Identity Of The Rights In Modern Constitution? As Right Subject, What's Its Properties in Value? What Are The Rights Of Children? What Are Its Types? Do They Have Independent Value In The Constitution? Who Have Responsibility To The Rights Of Children? Is It Sufficient To Protect The Rights Of Children In Our Constitution? How To Reconstruct Our Constitution, So Making It Adapt To The International Trend In Which The Conventional Rights Had Been Absorbed Into Constitution? Overall, The Purpose Of This Study Are As Follow:First, To Make Up For Our Lack Of The Study Of Children's Rights In Constitutional Field; Second, To Call For Academic Colleagues More Attention To The Rights Of Children.Children's Rights Movement Itself Is A Product Of Social Construction, Changing With The Historical Conditions, Social Relations. Since Bourgeois Revolution, The Children's Rights Have Experienced A Transforming Process Scratch In The Constitution, From Invisible To Visible. In The Constitution Of The United States And France, Children Are "Invisible" And "Hidden", They Had No Constitutional Status; And In The "Weimar Constitution", Children Got Protected Rights And Welfare Rights; After World War II, The Constitution Began To Admit That Children Have The Right To Equality And Autonomy, So That The Development Of Children's Rights Has Entered A New Phase. In Modern Times, Absorbing The Rights Of The Children In Convention Into Constitution Has Become A New Trend In The Development Process.In The Normal Form, A Child Is Generally Defined As Anyone Under The Age Of 18 Years; And Substantively Children Refers To The Any Persons Who Haven't Full Legal Capacity Because Of Their Physical And Mental Immaturity Owing To Age. In The Modern Constitution Children Have The Qualification Of Constitutional Rights, Which Is Both General And Special, Children Are Both Citizen And Special Right Subject. Fetus Is A Special Child, That Child In The Womb, Or Children To Be Born, Who Have The Same Personality, Shall Enjoy The Qualification Of The Constitutional Right. This Is Gaining More And More Recognition Not Only Ethically, But Constitutionally.Seriously Dealing With Children's Rights, It Must Be Recognized That Children And Adults Have The Same Intact Personality. Founding On Special Natural, Social Needs And Abilities, The Children's Rights In Constitutional Sense Refers To Children With Double Identity Of Person And Child, Should Enjoy And Is Recognized Certain Benefits On Constitutional Norms, Which Need Family, Society And States To Fulfill Certain Obligations. From The Point Of Right Subject, The Rights Of Children Can Be Divided Into Fundamental Rights Of Children And Especially Children's Rights. From The Perspective Of Content, Children's Rights Include The Right To Protection, The Rights Of Development And Autonomy. Children's Rights Is Made Up Of Different Bundle Of Rights, In Which The Rights Of Special Protection Rights, Right To Play, The Compulsory Right, and Autonomy Are Important To The Survival And Development Of Children, To Develop A Perfect Personality, Constituting Fundamental Rights Of Children. The State Bears Recognition, Respect, Protection and Promotion of Constitutional Obligations to Them.Effectiveness Of The Constitutional Rights Of Children Occurs In Certain Constitutional Relations, It Points To The Family, Society And State. Their Obligations To Children's Constitutional Rights Are Neither Limited Nor Unlimited, But The Greatest Responsibility, Which Basing On A Special Relationship Of Trust Between The Child And The Relational Responsible Body. From The Perspective Of Rights, Children's Constitutional Rights Have Defensive, Benefit And Relief Power; From The Point Of The Obligation, The Children's Constitutional Right Have Respect, Protect And Assistance Functions. The Effectiveness Of Children's Rights Have The Salient Features Of Priorities And Maximization. Under Normal Circumstances, In Case Of Conflict With Other Constitutional Rights Or Interests, The Rights Of Children Have Priority Or Have A Higher Rank; Within The Scope Of Norms And Reality Acceptance, The Protection And Realization Of Children's Rights Should Be To Maximize, In Order To Reach Their Maximum Benefits. Of Course, Any Kind Of Constitutional Right Has Its Own Insurmountable Boundary, Although Having Priority And Maximization, The Rights Of The Children Also Have Their Own Boundaries.In Modern Times, The Rights Of Children In The Chinese Constitution Also Have Experienced A Development Process From Recessive To Dominant. The Chinese Constitution Have Some Of The Features Of The Saving Constitution:First, It Recognize The Identity Of The Child, But Does Not Explicitly Recognize The Rights Of Children-That In The Constitution There Is No Clear "Children's Rights" Concept; Second, Paying Attention To The Protection Rights Of Children, But Ignores The Right To Freedom, Right To Participation. Comparing With Relevant International Human Rights Law And Foreign Children's Rights Constitutional Model, It Finds That The Constitutional Resources Are Not Sufficient For The Protection Of The Rights Of Children, Which Specially Perform As Follow:The Biased Concept; The Narrow Right; The Dispersed Rights Norms; And Insufficient Application Of Rights Resources. Therefore, It Is Necessary To Timely Reconstruct Our Constitution, In Which There Are Two Road:Constitutional Interpretation And Constitutional Amendment. Reconstruction Of The Constitutional Process Must Pay Attention To Children's Rights Into The Constitution And The Convention On The Rights Of The Child To Establish A Scientific Concept Of Problem. Growth Constitutional Rights Of The Child Will Not Be Smooth But Definitely Have A Future, People Interested In The Protection Of Children Rights And This Should Have Enough Confidence To Do A Good Job Of Preparing For This Fight!Overall, This Study Has The Following Innovations:First, It Refute Such Erroneous Views As That Children Have No Right, The Rights Of Children Is Useless, Or Harmful And So On, Expounding The Important Value Of The Rights Of The Child In The Constitution; Second, It First Systematically Analyze The Generation And Development Process And Intrinsic Motivation Of Children's Rights In The Constitution In Domestic Constitutional Academic; Third, It Sets Forth That Absorbing The Rights In Convention Into The Constitution Is The New Trend Of The Rights Of Children; Fourth, It Describes The Subject Qualifications Of Children And Its Main Characteristics In The Constitution; Fifth, In Terms Of Constitutional Norms, Constitutional Jurisprudence, Social Ethics, It Demonstrates That Fetal Has Constitutional Legitimacy As Person; Sixth, It Interpret The Constitutional Implications Of Children's Rights, And Analyze The Major Fundamental Rights Of Children From Obligations Of The State; Seventh, It Support That There Is A Special Relationship Of Trust Between Children And The Responsible Body Relationship, And Children's Rights Have The Effectiveness Of The Priorities And Maximization; Finally, It Analyzes The Problem In Existing Constitutional Safeguards Of Children's Rights, And Propose The Probable Path Of Its Reconstruction.Of Course, Due To The Limited Capacity Of The Writer, The Defects In This Article Can Not Be Ignored. First, The Study Mainly Rely On Chinese Literature And English Literature, Resulting In Visual Limitations, The International Perspective In This Paper Is Not Enough; Second, The Study Of The Rights Of Children And Their Characteristics In The Paper Is Still Very Preliminary, Superficial, Its Depth Of Research Needs Further Digging; Third, The Issue Of Special Rights Of Children, Relations Between Family, Society, Nation And Children Etc. Have Not Been Expanded, Also Need To Expand The Breadth Of Research; Fourth, Research Methods Of The Paper Relies On Normative Interpretation Singlely. Learning Is Endless; I Must Go On To Do More Work In The Study Of Children's Rights!...