The Fundamental Rights Of The Third Person Effect Theory

The theory of the fundamental rights' effect to the third person is originated from Germany. The traditional theory which applied only against the authority of the State is to prevent and control the authority of the State. Constitution adjusted the relationship between the individual and the State, and the fundamental rights had no effect between private persons. However, as changes appeared in social structure, there are some subjects with dominance, breaking the equality between the main privates, so the strong private subjects violating the fundamental rights of the poor private subjects emerged in practice. When the private subjects' human dignity has been violated, can the fundamental rights in Constitution against the state power intervene to protect the fundamental rights of the privates in the areas of private law relations? The theory of the fundamental rights' effect to the third person is emerged.The theory of the fundamental rights' effect to the third person is developing with the practice of the German trials. From the direct effect theory to the indirect effect theory, and then to the State obligation to protect theory. U.S. practice of trial gave birth out of "acts of state theory". Japan developed their own system of doctrine from integrating of kinds of theories.What about the meaning of the theory of the fundamental rights' effect to the third person to the theory and practice in our country? China has special national conditions, and in theoretical circles there are different views, no effect theory, directly applicable theory, indirectly applicable theory, and pseudo-problem theory. Do fundamental rights have effect to the third person? In this paper, the dual nature and the function of the fundamental rights will be analyzed to prove the fundamental rights have effect to the third person. However, we are in the modern constitutionalism phase and have not completed the task of it, so it is not realistic to enter the stage of modern constitutionalism. Moreover, there is not the dual structure of our national society, so the applying of fundamental rights to the third person must be restricted. This appears to be a contradiction. I think that the theory of the fundamental rights' effect to the third person does have referential significance for our country, so we should adhere to the Constitution's public nature according to our national conditions and indirectly apply this theory.The purpose and significance of this research is through analyzing the background, theoretical basis and application in different countries of the theory of the fundamental rights' effect to the third person, to explore this theory's application in our country, whether applied, and how to apply combined with our specific conditions.The first part of this paper discusses the traditional theory of the effect of the fundamental rights, using historical analysis research methods. Only through analysis of this theory's background can we have a comprehensive understanding of it.The second part discusses the generation, the theoretical basis and application model of different countries about the theory of the fundamental rights' effect to the third person. This part main uses the causal analysis and comparative analysis research methods. Only by grasping the internal mechanism of this theory and understanding the application model can combine the theory and practice together.The third part of this article is the application in our country of this theory. Combined with China's specific national conditions, I analyze the theoretical and practical significance of this theory to our country. The contradiction research method is the major method. China's national conditions require upholding the traditional fundamental rights effect, but in reality a violation of the fundamental rights of private demand for the fundamental rights are applicable between private persons. How to solve the dilemma?Directed at the contradictions in the third part, which path to select in our country was analyzed in the concluding part.