Study On Constitutional Protection Of Citizens' Communication Right In Network Environment

People are social animals and sociality is the essential attribute of human beings.Because people are always in a variety of social relations,their exchange of information and communication of emotions become an important part of people's social activities.Communication plays an irreplaceable role in the development and emancipation of individuals as well as for the spread and progress of human civilization.The right to communication is based on the social needs of human beings,the free exercise of communication and the right to unlawful interference.The right to communication is an organic part of human rights,and it is the basic right of human beings.The degree of the realization of the right to communication is closely related to the material and technical conditions of the times.The progress of communication technology,the improvement of traffic conditions and the innovation of communication equipment are very important to the improvement of the efficiency of communication.The emergence and development of the Internet technology has profoundly changed people's production and life.With the wide application of the Internet technology in the field of communication,communication has undergone tremendous changes,featuring wide use of electronic devices,diversified means of transmission,visualized contents and fast speed.The Internet environment based on the Internet technology has a positive impact on the realization of citizens' communication rights,offering people more choices in terms of who to communicate,how and when.But there is also a downside that can not be ignored.For example,the subject of communication secret is enlarged;information is easily leaked;the uncertainty of the subject of tort is increased;the consequence of tort is easy to spread and the difficulty of relief is increased.Correspondingly,the constitutional guarantee of citizens' communication right is facing some new problems in the network environment,including the objective value of communication right,the enhancement of order function,and the transformation of national responsibility from passiveness to activeness,and the demand for communication confidentiality is more prominent.Constitutional science should pay attention to and study the problems and consequences of citizens1 right of communication in the network environment.As the basic right,the right to communication can deal with the challenges and changes brought by the new environment given its functions as a basic right.First,the defense right function of citizens' right of communication.The defense right refers to the country's greatest respect for citizens within the scope of the law.In view of the defensive function of basic rights,the state assumes negative obligations,that is,not to infringe on the basic rights.In accordance with the different responsibilities in the state organ system,the legislative organs,the administrative organs and the judicial organs undertake corresponding negative obligations to the rights of citizens' communication.Secondly,the function of the right to benefit the citizens' right of communication.The right to benefit refers to the basic rights of a citizen which can ask the state for some kind of behavior and thus enjoy a certain benefit.On the basis of the difference between the request and the content of the state payment,it can be divided into the function of positive benefit right and negative benefit right.The function of negative benefit right refers to the power that the right person requests the state to give judicial relief when the right of communication is infringed.The function of positive benefit right is the power that the right person enjoys,which requires the state to provide corresponding welfare,service and other interests.The active benefit right function mainly corresponds to the active payment obligation of the state,including the obligation of the legislature,the administrative organ and the judicial organ to pay for the right to communicate.Third,the objective value order function.According to the function of communication right,the right of communication is no longer confined to the rights of citizens.The right to respect and protect communication has become the value basis of the whole society.It is the code of conduct of all state organs.The state should provide substantive preconditions for the realization of rights.The objective value and order function gives the communication rights more functions of openness,including the national protection obligation,the indirect third party effectiveness,the organization and procedure guarantee,the institutional guarantee and so on.Through the analysis of the function of communication right,it further explains the obligations of the state in the network environment to citizens' communication right,laying the foundation for clarifying the constitutional guarantee path of this basic right.The 40th article of our Constitution stipulates the right of communication directly,defines the status of the constitutional right of communication right,enumerates the main contents of communication right,and restricts the exercise of communication right.The relevant contents of the right to communication are listed in the second chapter of the constitution of our country,"the basic rights and obligations of citizens",which are regulated in the standard of personal freedom.However,the right to communication is not confined to personal freedom.The nature of personal freedom is based on the legal protection of the right of communication without interference or barrier free exercise.At the same time,because information communication is the purpose and core of communication,it is bound to involve the category of spiritual freedom.Therefore,the right of communication has dual attributes of personal and spiritual freedom,which embodies the organic unity of the behavior and content of communication.In keeping with the constitution,postal law,criminal law,civil law and other common laws have made corresponding provisions on citizens' communication rights,and initially formed a constitutional protection standard system.However,judging from the specifics,subject to the provisions of the constitution of communication right is too narrow;check the communication subject depart from the reality and check the communication conditions set too loose;the common law is mostly a repetition and si1ple copy of the 40th article of the constitution;fractured legislative network;legislation system unsystematic;the legislation lags behind limit the improper problems.It is necessary to restructure the constitutional norms of civil communication rights by modifying the corresponding provisions of the constitution,perfecting the Department legislation,and standardizing the restrictions on the right to communication.No remedy,not right.Around the protection and relief of citizens' communication rights,China has adopted corresponding measures in criminal,administrative and civil fields according to relevant laws and regulations,and has achieved certain results.However,there are also many problems that can not be ignored.For example,witness protection in criminal cases is weak;the administrative law enforcement is by different agencies with overlapping responsibilities;poor results,especially in the field of civil litigation;the jurisdiction of the court are difficult to define;it is difficult to determine the subject of infringement;litigation cost is an outstanding problem.In addition,in reality,illegal intervention and restrictions on citizens' communication rights happen frequently despite that it is an act that violates the Constitution.Such incidents indicates that the constitutional remedy of the right of communication is still facing grim challenge.The constitutional protection and relief of the civil rights of communication directly affect the realization and Realization of the rights.The United States,Germany,France,China's mainland and Taiwan,among other countries and regions have accumulated rich experiences in the constitutional protection and relief of the civil rights of citizens.Learning good experiences by others,we could further improve our judicial review system,strength the constitutional interpretation mechanism,improve the existing litigation system and establish specialized regulatory agencies,strengthen international communication and cooperation,improve the network environment in civil communication right constitutional relief system,so as to strengthen the basic right of the citizens' constitutional right to security communication.