Case analysis on the constitution

China human rights blind spots
The first Chinese --, Civil Affairs Bureau for unidentified vagrant rights case of death
[Abstract]: Bureau of civil affairs for the beggar, was the first time in Chinese rights. Analysis of many public welfare value of the content from the case of Gaochun county. The protection of human rights, the most realistic is the protection of the right of action, especially the right of vulnerable groups. The implementation of the right to rely on the Constitution and the law and make careful regulations in the system. The loopholes in the system requires accurate understanding of the spirit of the Constitution and the law on the relationship with the constitution to make up. The case of Gaochun county is not a simple civil litigation, it let us re-examine, rational thinking of public power and value, to explore a feasible way of defending human rights cause in deeper level.
[keyword]: human rights litigation litigation subject qualification of social vulnerable groups relief public power relief

Case:
In April 19, 2006, China's first Civil Affairs Bureau for unidentified death homeless rights case, the court in Gaochun County, Nanjing City People's court. On the court, the plaintiff Gaochun County Civil Affairs Bureau proof that, they have the right to damage the vagrants and beggars to provide legal aid, have the right to claim compensation; the accused agents that, Civil Affairs Bureau does not have the qualification of subject of action, does not have the right to claim for the dead. The original defendant court, every three hours, with a lot of controversy, the defendant does not accept the court mediation, the court did not in court.
The reason: Eighteen ten on December 4, 2004, at the age of 36, the county town of Gaochun taxi driver Li Daisheng drunk driving Su AQ9085 mini bus, along the double solid (Gaochun County, their names) highway running from west to East, to solid city area gas station, send its to die on the spot rolling will lie in motor vehicles on the road to a nameless men. A witness alarm Gaochun County 110, quickly rushed to the scene, examine the crushed man dead, man about 30 to 40 years old. A nearby workers confirmed to the police, the deceased is the tramp, 30 minutes before the incident, had to kneel on the ground asked him for a bowl of rice, did not seem normal.
After the incident of April 7th, Gaochun County police in the "Nanjing daily" published the "corpse notice", has no one to identify the body. The police according to the relevant provisions as the autopsy, DNA detection, the sending bodies for cremation Gaochun County Civil Affairs Bureau subordinate, and soon make accident conclusion. In April 22nd the formation of "traffic accident cognizance book" police show: "equal effect both in the accident, so both sides equal responsibility for the negative of the accident." Traffic accident identification conclusion though in time out, but in the end covers personal injury to the economic compensation, because of Li Daisheng does not accept the compensation amount of police believe that cannot be processed, how to maintain the tramp right into a problem.
Analysis.
Human rights as the basic component of ethical and legal, this component is the inviolability and in fact universal validity. No one can doubt that the right to life and the dignity value. When we are to think abstractly about human rights, it is the ordinary general; but it is to the actual condition oriented and more specific, it is a chance and relativity. [1] when ordinary citizens of a country's right to life, freedom and personal freedom and dignity are not guaranteed, we could say it is a constitutional government. Therefore, whatever is the constitution of the state, must have the protection of human rights.
In fact, in 2004 China's constitution are not the full sense of the concept of human rights. In terms of the constitution of "respect and ensure human rights" of the two session of the ten National People's congress attracted widespread attention from all walks of life in China. The illegal violation of civil rights and human rights and deprivation eventually through the judicial relief, so it is very important human rights into the constitution judicial protection of civil rights and human rights. The Supreme People's court vice president Wan Exiang in the "important" human rights into the Constitution in the article pointed out: "in the civil litigation, the judicial protection of human rights is to safeguard citizen's right of action, that is to make rational no money citizens to afford a lawsuit, especially for the elderly, women, disabled, minors, farmers this kind of vulnerable groups and migrant workers, to provide judicial relief and legal assistance."
The social vulnerable groups of social public resources involved in extremely low level, the social control of public resources, the minimal public wealth distribution effect is minimal, in the development of the society to survive with dignity and self development capacity is lack of special social groups. With the acceleration of industrialization, the aging society is becoming more and more serious, the vulnerable to gradually expand the range, old as vulnerable groups, laid-off workers, farmers and other life without landing to solve the food and clothing outside in the street begging. In 2003 the central government abolished the 1982 promulgated the "city vagrants and beggars detention and repatriation measures" and the implementation of the new "city without the street begging rescue personnel management approach". From the legal perspective, it is the social vulnerable groups relief resettlement as the goal, basically can be used as a kind of special social relief is classified into the category of social assistance system. However, in practice, large and medium-sized city rescue station to provide relief for a few people, most of the county, Township street begging personnel with emerge of itself and perish of itself life, once their personal infringement of their legitimate rights and interests, it is difficult to get timely protection. Therefore, the protection of vulnerable groups should seek to establish good express channel, legal aid way, lasting good interest relief, three-dimensional interest recognition mechanism and a full range of social vulnerable groups protection system. In the country "the rights of social vulnerable groups protection" in 2005 Shandong University seminar, more scholars have pointed out that by improving the constitution system design, perfect constitution lawsuit mechanism to protect the rights of vulnerable groups.
The constitution, the relevant provisions of the law and political practice, the legal protection of citizens' rights and the legislative and judicial branch. Mainly is the time to look at the legislation necessary to protect or restrict the rights of citizens to think of as the means and ability. The Constitution not only take the oath of citizenship rights protection, limiting the government power, it is more important to do this in the system, the protection of the rights of citizens to implement. In this case, the Ministry of public security was in accordance with the "traffic accident handling procedures" seventy-first "personnel identity can not confirm the death of traffic accident, the traffic control department of the public security organ shall be the indemnity delivery departments preservation. The compensation rights confirmation, by the relevant departments will be delivered to the damage compensation claim." But involves compensation, delivered to which department to save the problem, problem of the right to compensation, the traffic control department is unable to say. National School of Administration law professor, China of Administrative Law Association vice president Yang Xiaojun accepted the "Phoenix Weekly" reporter the interview said, this is an extremely special civil rights case, in the mainland legal framework, the unknown tramp die is equal to the die in vain, because the law can not find the main maintenance right, "this is a blind spot in the protection of human rights". therefore, unidentified death homeless rights case reflects the fact that the system level the lack of human rights safeguard difficult. In recent years, about the "procuratorial organs may be filed public interest litigation" direct call more and more high, but the law on this issue is not clearly defined, then this case belongs to the public welfare lawsuit is still pending. So, Gaochun county public security, prosecution, courts and civil affairs departments to sit together four repeated consultations. In March 8, 2006, the Procuratorate issued "the proposal to the Gaochun County Civil Affairs Bureau" (Ning high civil building "2006 XX 1) said, the State Council" city life without the street begging rescue personnel management approach "the provisions of article fourth, civil affairs departments of the people's government at or above the county level shall be responsible for the current wave of beggars relief work, and to aid station guidance, supervision. The Ministry of civil affairs "city living without the street begging rescue personnel management approach" the provisions of the detailed rules for the implementation of fifteenth, due to the old, young or disability can not recognize his behavior, no expression ability, and therefore can not find their relatives or the unit, also can't find out the account or the place of domicile of the assistance station, by the civil affairs the competent department of the people's government at the corresponding level placement program, to the resettlement. According to the provisions of article two, the civil affairs departments bear the nameless begging personnel rescue duties. Let the Civil Affairs Bureau to the starting point is good, but also caused a new legal issues: Civil Affairs Bureau, what do not have a built in civil litigation subject qualification? China's "civil law" 108th article "the plaintiff must be a citizen, legal person and other organization" has a direct interest in the case, the Supreme People's court "on certain issues concerning the application of law in the trial of personal injury compensation case explanation" first, the right to compensation for torts interpretation or any other cause direct physical harm suffered by the victim, the victim shall bear the obligation of the dependents and the dead victim's close relatives of [2]. This provision for a long time, will be limited to start a civil action in the direct interested person, the individual rights are borne by individuals. From the general situation, this standard is not inappropriate, private individual relief is the embodiment of respect for private property and free. However, the tramp from traffic accident death temporarily unable to find relatives, if strictly treated the plaintiff's qualification, is the act of civil litigation Civil Affairs Bureau did not start, the problems facing the private who died after the difficult to solve, the future possible relatives of the deceased adults activities will also be said of an aged person because of the time delay and. Any government action must be derived from the thorough system design, no this is not sufficient on its own. So the constitutional rights what tramps who should maintain? The constitution of basic human rights, specific can but must rely on the general law to obtain the real security, once a common human rights protection by ordinary legislation legislation omission, the basic human rights can only beam with the constitution "it". [3]

On the other hand, is generally believed that the modern law only in law for people to realize their rights provided effective relief mechanism in place, have a real sense of human rights. The most fundamental judicial relief mechanism is the action and procedural rights. In this sense, action and procedural rights are the means of human rights has meaning, we can say the essence of human rights. But the constitutionalism sense of human rights in the Constitution and the law not only requires that the rights and freedoms of citizens, but also in the legal and institutional arrangement to provide a legal means for the realization of these rights and freedom of citizens, especially in the realization of these unalienable rights and freedom by resistance, can use the preset published reality the relief system to resolve the obstacles. [4] I think, in the civil dispute, when the interests of people are vacant, as public service on behalf of the state and the government on behalf of the exercise of the right, otherwise it will cause the lack of human rights litigation, indifference. Respect for the parties involved in the accident of the right to life, to realize generalization of relief function, can effectively avoid the embarrassment of the malignant traffic accidents from accountability. Through the judicial justice will social loss of justice correction back, right of action should not be substantial much restrictions. Admittedly, substantive justice must give the basic procedural justice. Civil Affairs Bureau consider themselves in social assistance to the homeless, and the definition of social assistance and refers to the state and society through the statutory procedures in the predicament of the citizen gives substance support and life care, security meet the minimum standard of living system, compensation should not be included cable in civil litigation.
However, the author thinks that the subject of civil litigation in the case should be expanded. Design of the system of civil law is the "no application is not declared" led to the establishment of legal challenges to the guardian. The guardians of the establishment, our basic laissez faire, no care settings, no guardian to perform the duties of the specified time limit. Care has become the pure domestic private affairs, excessive reliance on family autonomy, because no one supervision, no guardian led to dereliction of duty prevarication guardian, begging on the streets of various disabilities stray (but only by "did not seem normal" narrative seems difficult to prove but disorder). But this is reflected in the more power loss. The state has the protection of civil life security obligations. According to the theory of natural rights, the state based on social contract obligations, national responsibility lies not only in the stop violence, also is to protect the general safety of the citizens. Since the guardian issues exist system defects so much, why not by relaxing the conditions of prosecution, scope initiation expand civil litigation, encourages relevant subject to compensate for the lack of rights, the realization of social justice, the author thinks that this is consistent with the legislative intent.
Initiate a lawsuit is not equal to win. In view of the administrative moral hazard problem of Civil Affairs Bureau (the vagabond life "conspiracy" to obtain compensation for the experts and scholars Public opinions are divergent.). Gaochun County Civil Affairs Bureau concerned immediately said: "the money, we won't move, storage for five years, all turned over to the state treasury as unclaimed." The author thinks, the amount of compensation, ownership problem can be put down and not to mention, this should be the judge. The crux of the problem lies in action must be started, or rights can not be carried out, the right of citizens to life in an awkward situation, under the protection of the constitution of human rights will be questioned. Even in the case of "vagabond who was crushed to death" and "vagabond life price" and other specific issues on the controversial, but at least the Civil Affairs Bureau adults start on behalf of the intervention of public power, it is the dead won a chance to speak. The absence of private rights, the national government as the public representative for the pursuit of rights protection, it can not result, but it must have such a process. The government does not have the power to directly request the perpetrators to make compensation, but through the judicial process can clarify the rights and obligations between the cases, the judge can rely on the human written and unwritten reason, make a relatively fair judgment. Therefore, expanding the start of civil litigation subject qualification, let the Civil Affairs Bureau to enter the judicial process actually is very necessary.
The government's "not as", "loose" system to a certain extent not on private and personal respect for freedom, but an extremely irresponsible. As I mentioned in the preamble of the protection of human rights, the reality is the protection of the right of action. The implementation of the right to rely on the Constitution and the law and make careful regulations in the system. However, the loopholes in the system requires the consideration of public power and value of the spirit of the Constitution and the civil law and the constitution, to explore a feasible way of defending human rights cause in deeper level.
Note: the case from the "Phoenix Weekly" in 2006 fourteenth "Civil Affairs Bureau for the people rights controversial"
[1] see [Germany] Kauffman "philosophy of law" the legal publication
[2] reference "Gazette of the Supreme People's court" in 2003 third period (2003) No. 20 release.
[3] see Han Dayuan, Lin Laifan, Zheng Xianjun: "the Renmin University of China study published in 2004 edition of" the Constitution
[4] see Jiang Guohua "constitution" metaphysical school Wuhan press