| Protecting basic rights is the basis of human rights protection,and defining the constituent elements is the premise of guaranteeing basic rights.However,while guaranteeing basic rights,we must realize that rights have boundaries.Restricting basic rights can prevent citizens from abusing basic rights.Traditional basic rights theory holds that basic rights consist of the dual structure of constitutive elements and restrictive elements.Constitutive elements and restrictive elements are dual dynamic equilibrium.The subject and way of exercising rights will affect the strength of restriction on basic rights.The clearer the constituent elements are,the better the protection of rights is,and the easier the restriction of rights is to be regulated.There are three levels to interpret the basic rights;first,to clarify the legitimate rights and interests guaranteed by the basic rights clauses;second,to construct a framework for protecting and restricting the basic rights;and third,to balance the conflicts between the basic rights.The basic rights clause is a contradictory balance.On the one hand,it can not make the basic rights a written declaration,on the other hand,everyone is free,that is,everyone is not free.With the development of society,"citizen-state" relationship in the field of traditional constitutional research is difficult to meet the needs of reality.The combination of "citizen-citizen" and "citizen-state"relationship emerges at the historic moment.Constitutional ideology has gradually penetrated into the hearts of the people.Citizens’awareness of exercising and defending their constitutional rights has become more and more urgent,and the need to express their own interests through speech has become more and more intense.When applying the constitutional freedom of speech clause to the judicial field,it will encounter the challenges of legal hermeneutics and legal technology.This article takes the freedom of speech clause as an example,by analyzing the constitutional precedent cited in Article 38 of the Constitution,and by analyzing how the court balances the dual structure of the freedom of speech clause,and combining the experience and pain points of judicial practice,it puts forward its own thinking on the protection of basic rights. |
