Fundamental Rights And Private Law

At present, the constitutional litigation in China in content is mainly the litigation of basic rights, with civil action as its main form. The research between the fundamental rights and private law is aimed at achieving a combination of the Constitutional law and the civil law in civil judgment to jointly protect the basic rights which have not been expressly provided in the Constitutional law. Consequently we need to solve the following three questions: (1)Why the basic rights of the Constitutional law could be applied in civil judgment? This is determined by the basic attributes of fundamental rights. (2) What rules of civil law could provide protection for the fundamental rights? This is determined by the internal norms of civil law configuration. (3) How to apply the fundamental rights norms in civil judgment? This is determined by the application rules of the Constitution.Fundamental right is not only people's right to defense against the state, but also the objective value of order to bind the legislative, executive, judicial and private behavior, with effect to a third person, as well as the norms ruling the private law relationship. Seeing from the relationship between the basic rights and civil rights, many types of the fundamental rights can be converted to the civil rights to obtain civil law protection.The infringement of fundamental rights among private persons is generally through legal behavior - legal or illegal– or through tort. For the former, we should apply the rule of null and void legal acts to protect the fundamental rights. That is to regard the fundamental rights as public order and good customs, making the infringement of fundamental rights become one kind of legal act which violate the public order and good customs and therefore turn into null and void. For the latter, the type of right violation relief in general tort remedies should be used, with general personality of the civil law absorbing the connotation of fundamental rights ,which makes fundamental rights violations equivalent to general right of personality tort bearing all consequences of infringement.It is necessary to cite the Constitution to protect basic rights through civil judgment, yet in accordance with China's current system, constitutional provisions can not be cited in civil judgment. However, such means can not be cited means constitutional provisions can not be applied as the judgment basis concerning the norms of request right - that is as the legal basis according to the legal basis, rather than to prohibit the application in other parts. It is not illegal to cite constitutional provisions as argument but a reasonable way and necessary choice according to the current system. If the quotation of the Constitution in civil judgment is aimed at filling the gaps between the Constitution and other low-level laws such as civil law, then it is an explanation of the Constitution as well as the judicial interpretation of the Constitution. In accordance with China's national judicial conditions, such interpretation should be made centrally by the Supreme Court for the case specially, then applied throughout the country.