Analysis Of The Phenomenon Of Unenumerated Constitutional Rights In Civil Judgment

The civil lawsuit refers to Unenumerated Constitutional rights of the Constitution.It refers to the reasoning process in which the court judges the existence of the right based on the constitutional norm and realizes the specific function.OBJECTIVE:There is a phenomenon in the judicial practice of China that invokes the Unenumerated constitutional rights.As the most representative constitution in the current Chinese judgment documents,the rights are not listed.The article takes the right to subsistence as an example and finds 16 sample civil referees through the channels of the referee and the Internet.Through the various channels such as the referee and the Internet,16 criminal judgment documents that incite the right to subsistence of the constitution are not listed,and the sample judgment documents are classified into categories according to the subject of rights,the degree of interpretation and the function of invocation.The civil lawsuit invokes the constitution without enumerating the rights.The premise is that the judge has the right to interpret the constitution.The court has the right to apply the constitutional interpretation in the case and does not conflict with the current Constitution of the People's Republic of China."People's Court Civil Judgment Production Rules"(2016)can also find the basis.In the civil referee,citing the unlisted rights of the Constitution helps to improve the constitutional rights system,and responds positively to the "new constitutional issue" and enhances the legitimacy and acceptability of the referee.The constitution cited in the civil judgment does not enumerate the two steps of the confirmation process and the confirmation method.Through the case of the survival rights cited in the 16 civil judgments,it can be found that there are mainly three types of problems in the civil referee's invocation of the constitutional rights:the lack of confirmation process,the choice of reasoning basis,and the choice of confirmation method are not reasonable enough,so the civil referee When the citing constitution does not enumerate the rights,it must follow a certain order when selecting the basis for confirmation,and the basic requirements of the constitutional interpretation method must be followed when selecting the confirmation method.