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On The Legal Effect Of Constitutional Rights In Civil Law

Posted on:2010-03-23Degree:MasterType:Thesis
Country:ChinaCandidate:J Y TangFull Text:PDF
GTID:2166360275960429Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Whether constitutional rights has effect in private laws or not, and if it has, what is the degree and the scope? The main oversea doctrine are "the direct approach" and "the indirect approach". The study in theory on this issue in Chinese Mainland is backward, and in Judicial Practice, constitutional rights did not affect in any way relationships between private actors. Until the case of "Qiyulin" in 2001, opinions of the scholars in Chinese Mainland mainly focus on the dispute of "constitutional rights can apply to the judicatory realm or not". The absence of civil scholar made this issue was short of support on practice, and in the discuss of constituting the Civil Code of China ,this issue was also ignored.On December eighteenth,2008,the Supreme count of China proclaimed that the Judicial Interpretation about "Qiyulin" was abolished, which made the issue of constitutional rights' effect in private realm became more complexity. So, the leitmotiv of this paper is to answer the question mentioned initially from the angles of civil laws.This paper is composed of three parts.In the first part, the author mainly demonstrates that constitutional rights has effect in the realm of civil laws.First of all, in People's Republic of China—one of the statute law countries—the Statute Law becomes the source of civil laws. Therefore, constitution which has the highest effect in the Legal System of PRC, is the source of civil laws of PRC. Secondly, how the constitutional rights affect in the private realm? This part generalizes both the oversea and Chinese Mainland's doctrines ,and make comments on them, pointing out that the schism of the country and civil society is not the only theoretical basis for the issue of effect of constitutional rights in the private realm. The scholars should keep a foothold of the political idea and social reality of China,and find the justification of the theory of effect of constitutional rights in the private law. Finally, constitution belongs to public law and civil law belongs to private law that is unassailable. This paper, by analysis the foundation, trend and importance of interosculation of pubic law and civil law ,pointing out the actual requirement, shows that the constitutional rights have effect in the private realm.In the second part, the author mainly demonstrates that constitutional rights should have a indirect effect in Contract law, by guiding the judicial interpretation of open-textured private law provisions——Public Order and Good Custom.Pass by the recession in the Twentieth Century and revival in the the Twentieth Century's later periods, the implication of Contract Freedom Principle has been modified, and Contract Justice Principle is paid special attention. The restriction of Contract Freedom Principle of law in every country, is out of the requirement for the protection of the constitutional rights. Although the time of implementation of Contract law of PRC is not long, indubitably, the party in powerful position could use Contract Freedom Principle to infringe the rights of the party in a weak position. For purpose of transformation of formal justice to substantive justice, China also take some measures to restrict Contract Freedom Principle, but it's not enough for the requirement for protection of the constitutional rights. So, this part, by introducing the overseas laws of effect of constitution in contract law and discussing the traditional function and new development of Public Order and Good Custom ,shows that constitutional rights should have a indirect effect in Contract law of PRC, by guiding the judicial interpretation of open-textured private law provisions- Public Order and Good Custom.In the third part, the author mainly demonstrates that the constitutional rights should be one of the object of the Tort law of PRC and shows that constitutional rights should have a effect in the Tort law of PRC, by guiding the General Clause in Tort Law.Firstly, whether the constitutional rights could be one of the object of the Tort law of PRC or not ? This issue is ignored in the discussion on the enactment of Tort Law of PRC. With the development of society, the limit between public law and private law is weaken gradually, and the public law and private law is interactional. When the system of rights can't provide sufficient relief for the victims , there is a tendency of expanding the object of Tort Law of PRC in many countries. Many legal provisions of constitutional law of PRC provide the basis for respecting the other peoples' constitutional rights, so the the object of Tort Law of PRC should contain the constitutional rights. Secondly, Under the background of the doctrine of effect of constitution in civil laws is accepted by more and more countries, the General Clause also serve as the medium of implemention the effect of constitutional rights in Tort law. This paper introduces the typical pattern of overseas legislation, and suggests that the protection of constitution of rights should be took into account in the legislation of General Clause of Tort Law in China at present. Finally, if the constitutional rights is brought into the object of Tort Law, there would be a problem in judicial practice that how to solve the conflict of constitutional rights . This part introduces the main doctrines of solution of the conflict, and pointing out that on the occasion of lack of the abstract model and of definite provision ,the best way to solve the conflict may by means of the concrete mode to measure the rights of both parties, which is helpful to judgment of concrete cases and to realization fairness and justice.
Keywords/Search Tags:Constitutional Rights, Effect in Civil Law, the Direct Approach, The Indirect Approach, Public Order and Good Custom, the Object of Tort Law
PDF Full Text Request
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