On Prohibiting The Abuse Of Fundamental Rights

This article focuses on the phenomenon of prohibiting the abuse of fundamental rights,with prohibiting the abuse of fundamental rights as the research object,and combines relevant norms,theories,and practices to explore the establishment of a system for prohibiting the abuse of fundamental rights in China.This article is divided into five parts:The first part is the establishment and development about the principle of prohibiting the abuse of fundamental rights.The essence of prohibiting the abuse of rights is the correction of the absolutization of private rights.As the most fundamental part of rights,the need for absolute correction of fundamental rights has gradually been recognized by people.The principle of prohibiting the abuse of fundamental rights first appeared in the Japanese constitution,and since then,countries and organizations such as Germany,Italy and the European Union have all established the content of prohibiting the abuse of fundamental rights in their constitutions.The Constitution of our country also contains the spirit of prohibiting the abuse of fundamental rights,which is reflected in the implementation process of the Constitution.The second part is the meaning of prohibiting the abuse of fundamental rights.By clarifying the relationship between prohibiting the abuse of fundamental rights and the exercise and restriction of fundamental rights,the concept and connotation of prohibiting the abuse of fundamental rights can be defined.The exercise of fundamental rights is a prerequisite for prohibiting the abuse of fundamental rights.The exercise of fundamental rights that violates the constitutional order constitutes the abuse of fundamental rights and should be prohibited by law.As interrelated constitutional issues,prohibiting the abuse of fundamental rights and the limitation of fundamental rights are often considered together,which can easily lead to confusion in terms of concept and connotation.The differences between the two are reflected in their nature,legitimacy basis,normative basis and normative composition.The third part is the normative basis for prohibiting the abuse of fundamental rights.By analyzing relevant legislation,provide support for the legality of prohibiting the abuse of fundamental rights.Article 18 of the Basic Law of Germany stipulates the principle of prohibiting the abuse of fundamental rights centered on the basic order of freedom and democracy.Although there is some controversy over the nature of Article 51 of China’s Constitution,the academic community generally agrees that it contains the spirit of prohibiting the abuse of fundamental rights.Taking the prohibition of the abuse of fundamental rights in Germany and China as an example,a comparative analysis of relevant constitutional and legal norms can help to further understand the connotation of prohibiting the abuse of fundamental rights.The fourth part is the criteria and constituent elements for determining the abuse of fundamental rights,addressing the issue of how to determine the abuse of fundamental rights.In terms of recognition standards,three models have been formed:Japan,Germany and the European Court of Human Rights.Our country does not have the special background when these models were established and should not directly adopt them.Instead,we should build models that are suitable for our own national conditions.The specific judgment of the abuse of fundamental rights must be completed through the constituent elements,including prerequisite conditions,purpose elements,subjective elements and outcome elements.The fifth part is the constitutional value and risk prevention for prohibiting the abuse of fundamental rights.The value of prohibiting the abuse of fundamental rights lies in maintaining a certain constitutional order.Prohibiting the abuse of fundamental rights relies on the operation of the power of courts or other organs,which can easily lead to the risk of state power abuse.To prevent the abuse of fundamental rights and the prohibition of their own abuse,consideration can be given to improving legislation,strict control of application and sound remedies.