论宪法基本权利的第三人效力.pdfVIP

Abstract The theory of third party effect of constitutional rights is originated in Germany. Based on the state-society binary theory and the division of public rights and private rights, traditional basic rights are binding to state authorities only. Constitution recognized the constitutional rights of citizens as the basic law, meanwhile as the highest judicial status, it prevent the constitutional rights of citizens from being jeopardized by state public power. However, as the developing of society, problems emerge from two perspectives: 1. although state consistently govern the society by traditional administrative measures, more and more private law approaches are taken in order to reach the administrative destinations. Because of the monopoly status of these kinds of “subjects of private law”, the constitutional rights of citizens are inevitably derogated. At the same time, among the pure subjects of private law, due to the gaps of power, the protection of constitutional rights can not be enforced in terms of civil law. 2. The implementation of constitutional right is depended on the specification of other department law, law is the core of the protection of constitutional right. Because of the negative act of legislative body, law is sometimes absent. Depending on the protection of law to enforce the constitutional rights is practically undermined. The two issues get the protection of constitutional rights discounted. The theory of third party effect of constitutional rights is aimed to deal with the problems above. The theory of third party effect of constitutional rights is amply developed in the judicial experiences of German, from the initial direct effect theory, derivatively to the later indirect theory. America