Expansion Of Adjusting Scope Of Tort Law

When citizens’ constitutional right is infringed upon, the use of the constitution on the relief is almost impossible, because, in accordance with the relevant provisions of the China’s current constitution cannot be cited as a case of direct legal basis. However, if use tort law to remedy but rather a fact. Because the traditional theory is that the constitutional rights are public rights, when abused, should by public law relief for them. Thus, creates a problem, when citizens’ constitutional rights are violated, the constitution cannot protect them, tort law and unable to protect them, this right is in the judicial protection of "vacuum". And the emergence of this situation, ran counter to the provisions of the international convention on human rights is also strongly condemned by the international human rights society. So how to provide positive relief for infringement of such rights has become the research emphasis in this paper.The innovation of this article is to include some constitutional rights cannot be protected by law to tort law adjustment range, and the possibility of this kind of practice, feasibility and launched actively explore the specific path. Its theoretical significance is let us to re-examine whether two points concerning the existence of traditional rights has necessity; Its practical significance is to actively guide and strengthen the judicial practice of human rights protection.Range to include some constitutional rights in tort law, this article is divided into four parts to it. The first part discusses the traditional right dichotomy theory defects. Traditional right dichotomy theory defects problem is that we must first solve the problem, because this theory is "responsible" loose some constitutional rights protection, also because of the time background of the theory is already great changes have taken place, it can’t keep up with the pace of the development of The Times. The defects of the theory of instability, main show is the theory foundation to ignore correlations between public and private rights, unable to cope with the new type of rights issues.Right in the second part discusses the traditional dichotomy, the judicial practice to relief the dilemmas facing constitutional rights. First of all, we need to know through a lot of cases to the judicial practice of the present situation of the constitutional rights, and further discusses the bad influence of dichotomy theory in the practice of rights protection of human rights. Secondly analyzes the scholar to put forward to solve this problem of "constitutional judicialization" path doesn’t work in our country. Finally pointed out that the UN committee on economic social and cultural rights protection of discontent about the present situation of human rights in China, and introduces the terms of the basic rights in international private law applicable in the four modes of existence.The third part explores the perspective of human rights infringement the feasibility of the method of adjusting range expansion. First, this part applies the method of empirical analysis of the constitutional rights in the judicial practice case statistics and analysis, and a basic conclusion, tort law is to this kind of constitutional right to relief for the best, the most viable path. And then to tort law adjustment range openness, tort law means diversity are analyzed and demonstrated.The fourth part discusses the tort law adjust scope expansion concrete path. This part analyses the "general personality right" disgraceful consideration path and the path. For the first path, and concretely introduces the general personality right of German law, at the same time analyzes the method of general personality right, and to compare the two, pointed out that the essence exists in common. And then the article is related with personality right, demonstrates the constitutional right to dock with the tort law fitting problem. Disgraceful consideration for path, the article analyzes the Anglo-American law system and continental law system to be contrary to public policy customs rules, the main countries and that China’s disgraceful consideration in determining the universal standard, supplemented by local standards.