Constitutional Protection Of The Right Of Communication Privacy In The Process Of Investigation And Evidence Collection By The Court

Article 67 of China’s Civil Procedure Law gives the Court the right to investigate and obtain evidence.Article 40 of the Constitution of China directly stipulates the right of communication privacy,clarifies the basic right status of the right of communication privacy,our citizens enjoy the right of communication privacy,and restricts interference in the exercise of the right of communication privacy.However,the Constitution,as the Basic Law,is a programmatic law,and it only provides basic general provisions on basic rights.It does not make detailed provisions on the extension,connotation and guarantee of the right of communication privacy.In the judicial trial process,the Court may investigate and collect evidence from the parties or relevant telecommunications enterprises in accordance with the relevant laws and regulations of the Civil Procedure Law,which may involve the citizens ’privacy of communication.At this time,the parties or related telecommunications companies did not consider the Court to be a legal subject authorized by Article 40 of the Constitution to inspect communications.The court’s investigation and evidence collection act is unconstitutional.In practice,there will be cases where telecommunications companies refuse to provide the Court with relevant citizen communication materials.As a result,this has created a "tension" between the Courts’ right to investigate and obtain evidence and the citizens’ right of communication privacy.The "tension" is essentially a conflict between the public power of the Courts’ right to investigate and obtain evidence and the basic right of communication privacy.With the advent of the new media era,the richness of the right of communication privacy and the realization of rights are unprecedented.However,with the expansion of public power,there has been a compression of private rights.There is no "absolute right" or "absolute power".When we discuss the public power and the right of communication privacy,we should pay attention to the restriction of public power to protect the development of the right of communication privacy without neglecting the effectiveness of the right of communication privacy.In this way,we can balance the relationship between the power and the right,toward the benign interaction direction.No remedy,no right.As far as the current state of the protection of the right of communication privacy in China is concerned,there are very few provisions in the criminal,civil,and administrative fields,but there are no corresponding provisions such as the subject,authority,and procedures for inspecting citizens’ privacy of communication.Although the right of communication privacy is determined by the Constitution as a basic right,its content has also caused a lot of controversy.Exactly what kind of subject has the right to intervene,through what procedures,how to ensure that citizens’ right of communication privacy are not violated,etc,are very vague.The constitutional guarantee of the right of communication privacy directly affects the realization of the rights and the extent to which it is realized.At the same time,strengthening the constitutional guarantee of it also effectively resolves the "tension" between the right of communication privacy and the Court’s investigation and evidence collection.