The Constitutional Rights Of The Third Party Effect Theory

The theory of third party effect of constitutional rights is originated in Germany. Basedon the state-society binary theory and the division of public rights and private rights,traditional basic rights are binding to state authorities only. Constitution recognized theconstitutional rights of citizens as the basic law, meanwhile as the highest judicial status, itprevent the constitutional rights of citizens from being jeopardized by state public power.However, as the developing of society, problems emerge from two perspectives:1.although state consistently govern the society by traditional administrative measures, moreand more private law approaches are taken in order to reach the administrative destinations.Because of the monopoly status of these kinds of “subjects of private law”, the constitutionalrights of citizens are inevitably derogated. At the same time, among the pure subjects ofprivate law, due to the gaps of power, the protection of constitutional rights can not beenforced in terms of civil law.2. The implementation of constitutional right is depended onthe specification of other department law, law is the core of the protection of constitutionalright. Because of the negative act of legislative body, law is sometimes absent. Depending onthe protection of law to enforce the constitutional rights is practically undermined. The twoissues get the protection of constitutional rights discounted. The theory of third party effect ofconstitutional rights is aimed to deal with the problems above.The theory of third party effect of constitutional rights is amply developed in the judicialexperiences of German, from the initial direct effect theory, derivatively to the later indirecttheory. American do not has the theory of third party validity of constitutional rights, but onesimilar is “state social theory”.To our country, the issue of third party effect of constitutionalrights in theory is helping to sort out the relationship between civil law and the constitutionallaw; in practice dedicated to solve the problem of remedy when these constitutional rightsunspecified by department law are jeopardizedThe academic destination of this thesis is according to the analysis of the theory basis ofthird party effect of constitutional rights and the implementation models of states, to discusswhether the theory of third party effect of constitutional rights is applicable in our country,and how to apply it, the advantages of its application to the protection and remedy ofconstitutional rights. The first part of this thesis is applied the historical methodology, introduced thetraditional constitutional rights are only binding to the state public power, as the emerging ofnew type of subjects jeopardizing constitutional rights, and the legal flaws causing by thenegative act of legislation, undermined the protection of constitutional rights which are notspecified by department law. This situation can be changed by the apt legislation, butlegislation is not one deal job, we are expecting legislation fills the gaps of law while remedythe current constitutional rights unspecified, the theory of third party effect of constitutionalrights is dedicated to solve this problem, it offers the instrument of remedy to theseunspecified constitutional rights when jeopardized.The second part of this thesis is applied the rational and comparative methodology,compared different theories of different countries in terms of this issue. In this field, Germanhas experienced the transformation from direct effect model to indirect effect model, nowindirect model of German is the common theory. The American theory in terms of this issueis “state behavior theory”, by the means of seeking “state government behavior” amongprivate behavior make the constitutional rights applicable among private subjectsThe third part of this thesis is applied the paradoxical methodology, according to theparticular situation of our country, explaining the necessity of discussing third party effect ofconstitutional rights in our country, and the constitutional legal basis and the scope of theconstitutional rights applying the third party effect of constitutional rights in our country.Finally, via the analysis of current legal system of our country and the characteristic ofconstitutional rights, concluding that our country should apply the indirect model, through thebasic principle of public order and good custom in civil law, convert the connotations andspirits of constitutional rights to the relationship of civil legal action.