The Protection Of Private Property Rights

The transitional period, the study tool of sociology and institutional economics, mainly provides advancing gradually and integrity as well as the structures of society and economy from the view of law. Combining with the research findings on the transitional period in the field of constitutional jurisprudence, the transitional period that the theoretical tool this dissertation emphasizes is born. Private property rights belong to comprehensive rights, can contend with private rights and public ones. The modern constitutional protection system of private property rights includes three basic structures in the sense of legal norm system: ensuring clause, restrictive clause and taking clause. The establishment of the protection system is favorable to promote personality, the protection of human rights and public property, the healthy development of market economy, the growth of civil society, and to control the abuse of political power. Therefore, the study of the subject shouldn't be out of China transition's background, so shouldn't the dualism study. Natural resources should be combined with the experience of other countries. Last but not least thing is to control the "degree" of advancing gradually relating to system design.The United States as the representation of the civil law countries has a relatively mature system of constitutional protection of private property rights, so does Germany, the representation of the common law countries. The introduction of the principle of due process, the collection compensation system, constitutional clauses about private property rights, the definition of public interest, and the law's legislation power authorized by the constitution, all will help China to build the constitutional system of private property rights quickly and consummately.On the basis of theoretical material above, the dissertation describes the status of private property rights of today's China with the transitional period theoretical tool, creates charts to trace back to the road of constitutional making and modification of private property rights, analyzes the defects of China's constitutional protection system about private property rights nowadays from the view of jurisprudence and constitution, thus, it reveals the essential reason that defects exist lies in the social reality that China is in the transitional period, and the main ones are the policy-constitutionalism mode and the fuzzy classification ways in which constitution limits private property rights. The suggestion is that not only we should change the policy-constitutionalism mode into institution-constitutionalism one, but also we should distinguish the legislative powers authorized by constitution and concrete restricting modes written in constitution. Then, the construction assumption about constitutional protection system about private property rights can be proposed: reducing the nature of private property rights, one of basic human rights, eliminating the tendency of unequal protection of private and public property, distinguishing between collection and confiscation, defining the scope of public interest, improving the collection compensation system, establishing due process principle, systems of the constitutional explanation and unconstitutional reviewing.