On The Effectiveness Of Private Law Of Constitutional Basic Rights

The intention of the private power of the constitution’s basic rights lies in its acknowledge ment that the constitution’s basic rights can be applied for the basic right conflicts between the private subjects. In China, owing to the restrictions from the traditional constitutional theory and the current system, there are abundant studies on the public power of the constitution’s basic rights but insufficient studies on the private power of the constitution’s basic rights. However, with the socialization development of the state power, basic right conflicts between the private subjects are getting more and more evident, which may result in the invasion in the fundamental rights of citizens. In the judicial practice, when the fundamental rights of citizens are invaded by aggressive private subjects, the constitution cannot be quoted for its lack of private power. Meanwhile, if there are no corresponding civil laws stipulating explicitly, the fundamental rights of citizens may not be in an awkward situation of insufficient remedy. Therefore, studies on the private power of the constitution’s basic rights are of remarkable theoretical and practical significance. In this article, it mainly took the private power of the constitution’s basic rights from the perspective of rule of law as the research object. At first, concept of the private power of the constitution’s basic rights was defined, historical context of the development of private law of the constitution’s basic rights was illustrated, and foundation of the generation of the private power of the constitution’s basic rights was explored, thus to demonstrate the rationality of the private power generated by the constitution’s basic rights from various aspects. Secondly, practical problems and theoretical dilemma of the private power of the constitution’s basic rights was further illustrated, system deficiencies in the guarantee of the constitution’s basic power were pointed out, and on that basis, possibilities and necessities of private power of the constitution’s basic rights were explored. Thirdly, with the comparative analysis,’the third person effect’ theory in German and’state action’theory in America were further elaborated, and their advantages, as well as disadvantages were evaluated, so as to seek for referential experience. Finally, it was pointed out that on the basis of following indirect applicable principles and respecting specific rule of law, the construction of complex constitutional right litigation is an effective approach for realizing the private power of constitution’s basic rights.