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On the Horizontal Effect of Fundamental Rights

Author: Dai
Tutor: LiHaiPing
School: Jilin University
Course: Constitutional and Administrative Law
Keywords: Basic Constitutional Rights Horizontal Effect State Action Theory IndirectHorizontal Effect The Typed Appliance Theory
CLC: D921
Type: Master's thesis
Year: 2013
Downloads: 55
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Abstract


The United States and Germany have different theories in the basic rights of thepossibility of private applicable. If applicable, it is controversial on the applicableextent and scope. This paper will find a suitable for China’s fundamental rights theoryof horizontal effect by comparing the theory of virtue and its essence.The first part is to start from the concept of the horizontal effect of fundamentalrights. It recognizes the fundamental rights of the Constitution can be applied to theconflict between the main bodies of the private fundamental rights, which meansprivate body based on the fundamental rights of the Constitution can restrict and limitthe violations of other private subjects. It paves the way for the third part of ourtheory, by analyzing these basic problems, what is the background of fundamentalrights, how to achieve the effectiveness of the fundamental rights, what are the factorsthat affect the fundamental rights of effectiveness of norms approach.The second part focuses on the theory of acts of state theory in the United Statesand Germany third parties. In the exploration of national behavior theory, it analyzesthe public function theory can be characterized as acts of state, theory of Governmentsubstantive involvement in and judicial implementation of private discriminationtheory. Finally, it analyzes the theory between the two countries on the range of thefundamental rights of the two countries in the private sector, the degree ofeffectiveness of the fundamental rights of private relations and fundamental rightstake effect in different ways.Acts of state theory and third-party effectiveness theory of the virtues of the twocountries are quite representative for the effectiveness of the theory and practice ofthe level of fundamental rights in the Constitution. We can roughly grasp the startingpoint, the process and the current status by summating the theory and practice ofthese two countries. It is an important reference for basic constitutional rightsprovisions through comparing foreign theory. There are four main doctrines in China,no effectiveness, directly applicable, indirectly applicable and false questions. Finally, it is divided into the type of basic constitutional rights only with verticaleffect type and the level of effectiveness of basic constitutional rights. Meanwhile, thebody by virtue of its strong position against other private entities basic constitutionalrights in our society divided into the country as a private law on the subject,quasi-state organizations and the social organization which has a strong position. Theauthor analyses the type of horizontal effect of fundamental rights and the level of thefundamental rights of the effectiveness of the object, to build a theory of theeffectiveness of the level of China’s basic rights and propose for this view.

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