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The Research On The Limitation Of Foundational Rights

Posted on:2020-03-08Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z G ZhangFull Text:PDF
GTID:1366330572990062Subject:Constitution and Administrative Law
Abstract/Summary:PDF Full Text Request
The restriction of basic rights is not only an important theoretical proposition in constitutional law,but also a component and core category of the theory system of basic rights.In the past,the study of basic rights restrictions in the academic circles mostly studied in the specific theory or the limitation of specific basic rights from a specific perspective,lacked the systematic thinking of the basic rights restriction theory,and less the social practice of restricting basic rights.Although the existing research theory is of great value,the basic rights restriction theory must always return to reality and be tested by practice.Therefore,it is necessary to construct the basic rights restriction theory from both the empirical and logical perspectives.Under the theoretical proposition that "the purpose of restricting basic rights can only be to better protect basic rights",the author tries to construct a holistic system of basic rights restriction theory in the study,through the theoretical generation and institutional logic of backtracking basic rights restrictions.On the basis of reflection on the theoretical basis of the basic rights restriction,it is to construct the basic rights restriction theory and respond to the social practice of basic rights restriction.At the same time,the author emphasizes the Chinese context of researching the approach,confronts the "China issue" in the restriction of basic rights,and forms a Chinese plan to solve the problem of the basic rights restriction system based on China's social background and institutional reality.The first chapter discusses the logical premise of basic rights restrictions.Defining the concept is the premise of rational thinking about legal issues.The logical starting point of the study of basic rights restriction is the concept of basic rights.Based on the theoretical reality that academic circles lack basic academic consensus and accumulation in the field research of basic rights restriction,the author firstly studies the formation of the concept of basic rights.The analysis of the concept and essence of rights adopted,and the study of the origin and generation of the concept of basic rights,reveal the different formation paths of the concepts of basic rights and institutions in the West and China,and from the "confirmation of the constitution" and "basicity" Aspects define the concept of fundamental rights.In contrast with the formation of basic rights and the concept of basic rights relief,the connotation and extension of basic rights restrictions are clarified.In addition,this chapter also studies the classification,structure and function of basic rights which are based on the logical association between basic rights restrictions and basic rights protection,and degree of restriction and institutional orientation.The second chapter discusses the legitimacy of basic rights restrictions.The legitimacy of fundamental rights is self-evident,but the justification of restricting basic rights requires logical argumentation.Based on the core categories and concepts of legality in the field of legal philosophy,the author analyzes and compares the similarities and differences between legitimacy and legitimacy in the concept and connotation,and believes that legitimacy is the substantive legitimacy,leaving the legitimacy to talk about legality.Sex will deviate from substantive justice.The theoretical basis of the basic rights restriction should focus on human nature and basic rights itself.Moderate doubts about human nature and the restrictive nature of basic rights themselves are the sources of legitimacy of basic rights restriction systems.The justifications of the basic rights include the conditional priority of the value of order,the balance of interests based on the value of justice,and the limited recognition of the concept of legal paternalism.At the same time,however,it should also be noted that human dignity is the bottom line for the application of legal fatherhood and the restriction of basic rights.The restriction of basic rights cannot in any way impair human dignity.The third chapter demonstrates the operating principle and legislative mode of basic rights restrictions.The operational theory of basic rights restrictions includes the justification of basic rights restrictions,the way in which basic rights are restricted,and the limits of basic rights restrictions.After establishing the legitimacy of the basic rights restrictions,the argument for the reasons of the restriction of basic rights is more a process of justification.The basic rights restrictions include constitutional restrictions,legal restrictions,and special restrictions on administrative agencies in emergencies.The theory of basic rights restrictions is closely related to institutional practice,so it is necessary to put the two on the same level to think and study.Therefore,the author studies the legislative styles of the basic rights restrictions stipulated in the constitutions of the world,the conventions of derogation system of basic rights in the main international human rights and the legislative model of China's basic rights restriction,especially the analysis of the legislation of Article 51 of our Constitution.The patterns and different of systems are fusioned based on legal reservations.The fourth chapter demonstrates the constitutional review of basic rights restrictions.Although the basic rights are restrictive,the legitimacy and legitimacy of the basic rights restriction system have been demonstrated.However,the public power is not restricted to the basic rights based on public welfare and other reasons,but must follow certain procedures and methods to limit the basics.Rights are also subject to restrictions,which is the institutional logic of “restricted restrictions” based on constitutional review.The author begins with the study of the constitutional review system and demonstrates the relationship between constitutional review and basic rights restrictions.The institutional path of the constitutional review of basic rights restrictions was studied from the perspectives of formal review and substantive examination.At the same time,it demonstrates the institutional relevance of constitutionality review and basic rights restriction in Chinese context,and proposes that China's basic rights restriction and constitutionality review are at different stages from Western countries,and they also face different problems.The fifth chapter reflects and reconstructs the theory and system of China's basic rights restriction.Through the study of the formation of basic rights and the formation of basic rights restriction system in China,the Chinese issue of basic rights restriction is extracted,and the main reasons and influencing factors behind the problem are analyzed in depth.On the basis of drawing on the experience of relevant countries,we will put the issue of basic rights restriction into the Chinese context and think about it.Under the background of the current constitutional review work,we should rediscover the value of Article 51 of the Constitution and activate the law.The principle of reservation is to solve the problem of China's basic rights restriction from the perspective of legislative style,constitutional interpretation,administrative litigation,and especially constitutional review.
Keywords/Search Tags:basic rights, basic rights restrictions, constitutional review, legal reservation, principle of proportionality, chinese context
PDF Full Text Request
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