An Empirical Study Of Civil Judgment Invoking Basic Rights Clause

It shows that there is a tension between the judicial use of basic right clause and its normative function.In order to explore the theoretical or empirical reasons behind its existence,this paper based on the retrieval of a number of cases to carry out research.According to the existing sample judgment,invoking the basic rights clause of the constitution in civil judgment plays various functions such as making systematic interpretation for other legal norms,making up the legal gap and expanding the interpretation to include the legal facts.However,there are also many problems in the process of the court's application,which show the problems such as insufficient protection of basic rights in the absence of legislation,ambiguous application path,the court's inactive attitude and insufficient reasoning and argumentation.On the basis of case analysis,logical investigation and theoretical reflection,this paper analyzes the application of basic rights clause in civil judgment.While actively maintaining the existing constitutional system mode,give full play to the reasoning role of the constitution in civil judgment,determine the fact basis of civil judgment invoking basic rights clause,clarify the reasoning mode of invoking basic rights clause,and establish the case guiding system of invoking basic rights clause.It is hoped that this article can explain the limitation and path of civil judgment invoking the basic rights clause and promote the spread of the idea of constitutional governance.