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The Study of the Horizontal Effect of Constitutional Rights

Author: LiXiuQun
Tutor: XuXianMing
School: China University of Political Science
Course: Legal Theory
Keywords: Constitutional rights Horizontal effet Vertical effect Weak direct horizontal effect The protective duty of State
CLC: D911
Type: PhD thesis
Year: 2007
Downloads: 423
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Abstract


With the devolopment of the idea of constitutionlism, constitutonal rights play more and more role in social life. Individuals are not only the subject of constitutonal rights , but also the subject of constitutional duty . If we want to accept the idea that the constitutional rights can be applicated in private cases, there are many problems which have to be answered, Such as : Do constitutional rights apply to private law ? Do constitutonal rights apply to litigation between private individuals? In the traditional opinion, constitutional rights impose constitution duties only on the govermantal actors and not on private actors, which is callded vertical effect . we have to change our perspective of the nature of constitutional rights, which is not only the subjective rights , but also the objective value. So the constitution has the supreme binding effect on the whole legal system. As for this, we can accept that the constitutioal rights have effect on private actors, which is called horizontal effect.In the first chapter, the core problem is what the horizontal effect of constitutional rights mean. In order to answer the question , the first thing is to differentiate between horizontal effect and vertical effect, and also horizontal application. Furthermore, the horizontal effect of constitutional rights can be argued in the external views, for example, the background of the devolopment the constitution righs , and the relation between public law and private law. We can know that the horizontal effect of constitutional rights means that constitutional rights can bind private actors.In the second chapter , the horizontal effect of constitutional rights can be argued in the internal views, which is the nature and the function of constitutional rights that it has double essences, subjective rights and the objective value. With the opinon on the nature of the constitutional rights changing, many new functions about constitutional rights appear , such as the radiation of constitutional rights and the protective function of constitutional rights, which can be accepted little by little.In the third chapter, the contents are mainly about the model of the horizontal effect of constitutional rights. Every model has its supremcy, but it also has the defect which can not be overcomed by itself. Why would this phenomenon appear? Consequently, there are some questions which need to be answered more deeply.In the fourth chapter, the primary problem is to find the key elements binding on the model of horizontal effect . It can be found that the true question of horizontal effect is the collision of fundamental rights between private actors. So it is the duty of the State to take measures to resolve the collision. From the Alexy’ s theory of constitutonal rights , we can know that rights and duties can transformed each other. So it means that if you have rights, the opposite must have duties, vice versa.In the fifth chapter, the main cotent is how to apply the weak direct horizotal effect. The essence of horizontal effect of constitutioal rights which I have pointed out is balancing the interests between the collisions of the opposites. In my opinion, Alexy’s perspective that constitutioal rights has the nature of principle is useful for us to resolve the collision.Maybe , someone will ask whether the horizontal effect of consitutional rights can be applied in china. In order to answer the question , we should pay more attetion to the elements which will affect the application. Howerver, it is likely to accept weak direct horizontal effect in the concrete conditions, because there are some clauses which provides that individuals should be bound by constitution and the court should have due regard to the spirit , purport and objects of the constitutional rights, or judges should be consistent with the constituton, in the interpretation of any law.

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CLC: > Political, legal > Legal > UNIVERSITY > National law,the Constitution
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