Citizens telephone list of basic civil rights and constitutional protection from judicial inquiry

(reproduced)
 
   Liu Dan

   The introduction of the case:

   In 2003, Yiyang County People's court in the implementation of administrative litigation cases, the county mobile business ministry declined to provide a communication user phone list, the business department shall impose a fine of 30000 yuan. According to the "Telecommunications Regulations" and "Regulations of Hunan province" communication, mobile communication company correspondence freedom and the obligation to protect the user's secret. For refusing to provide the court with the user telephone list, Hunan Province in recent years has occurred 5 telecommunications companies fined disputes.

   The people's court has the right to check whether the mobile communication user communication data in this problem, there are two kinds of give tit for tat views. The people's court has the right to the relevant units and individuals shall not refuse the investigation and collection of evidence, the relevant units. While the communication enterprises think, user communication information in the detailed call list reflects a lot of personal privacy secrets, is an important part of communication content, which belongs to the communication secret. In November 6, 2003, the relevant parties for Hunan Provincial People's Congress Law Committee on whether a people's court has the right to inspect the mobile communication user communication information to make the legal questions.

   Hunan Provincial People's Congress Law Committee believes that: civil liberties and privacy of communication is a basic right of citizens of the constitution, special cases of the rights of limited constitution, namely because of the needs of state security or of criminal investigation, by the public security organ or the procuratorial organs in accordance with legal procedures to check for communication mobile communication; data in the detailed call list clearly reflects a lot of personal privacy and secret, is an important part of communication content, communication secret belongs to the category of the constitutional protection; the people's court in accordance with the provisions of the Civil Procedure Law of investigation and evidence collection, these Provisions shall be in accordance with the constitution. And this understanding from the NPC Law committee. In April 9, 2004, the NPC Law Committee replied to agree with this kind of understanding.

   Standing in the province, the Municipal People's Congress supervision according to law, the court returned the 5 disputes fine, and made an apology.

   Comment on:

   The focus of this dispute mainly involves four aspects: one is the basic rights of citizens entitled to what? The two is a basic right of citizens in what circumstances is limited? Three is the people's Court of mobile users detailed call list of investigation and evidence collection is a violation of the fundamental rights of citizens? The four is the constitutional rights of citizens are infringed should be how to protect? Following on these issues for some analysis:

   A, citizens those rights? How to protect the basic rights of citizens?

   The fundamental rights of citizens is the essential constitution of certain rights of citizens. In the modern democratic system, the citizen's legal rights is a multitude of names, extensive content. But in nature, there are basic rights and rights, the constitution, as the fundamental law of the state, that is the basic right of the citizen. Compared to the general rights provisions and other laws, the constitution basic right more fundamental, determines the legal status of citizens in the country, citizens in social life must be right, but with a parent, other general civil rights are derived from the. Because of this, the basic constitutional rights has stability and exclusiveness, and citizenship will not be divided, the equal legal status and people can not be separated, once become the constitution, any law, any organization or individual to maintain it, not arbitrarily change, deprivation or restriction.

   Our constitution the fundamental rights of citizens were defined. According to the provisions of the constitution, the basic right of the citizen is mainly divided into four categories. The first category is the civil and political rights and freedom. Including the equal rights of citizens, citizens' rights to vote and stand for election, the citizens of speech, press, assembly, association, parade, demonstration of freedom, civil criticism, complaints, charges and prosecution, the right of indemnity. The second category is the citizen personal and religious freedom. Including the citizen's personal freedom, personal dignity and inviolability of the residence, the freedom and privacy of correspondence of citizens are protected by law, citizens have the freedom of religious belief. The third category is the citizen in society, economy, education and culture rights. Including the citizen the right to work, the workers the right to rest, the citizens have the right to material assistance, the right to education, scientific research, literary and artistic creation and other cultural activities, in which, the labor and education, but also the obligations of citizenship. The fourth category is the specific human rights. Specific include: equal rights for women, retired personnel and reserves the right of life protection, marriage, family, mother, children and the elderly rights protected, the right to development of adolescents and children of overseas Chinese, returned overseas Chinese and their relatives, the legitimate rights and interests. At the same time, the Constitution requires the people of all ethnic groups, all state organs, armed forces, political parties, social organizations, enterprises and institutions, the country must take the constitution as the basic standard of conduct, and for the maintenance of the dignity of the constitution, safeguard constitution implementation responsibilities. At the same time, the Constitution and other laws in violation of the provisions of the constitution, violations of the fundamental rights of citizens in determining the behavior of the corresponding legal responsibility.

   Freedom and privacy of correspondence is a constitutional basic rights of citizens. "People's Republic of China Constitution" fortieth stipulates: "the freedom and privacy of correspondence of citizens of the people's Republic of China shall be protected by law." First of all because, communication and the right of privacy in close contact, is a part to protect citizen individual private life and privacy. Secondly, communication and citizen participation in social life, the necessary means of ideological, point of view, the exchange of feelings, but also an important content of people's spiritual life, thought is closely related to freedom of expression and the citizen. At the same time, an important way of communication and access to information for people in the real life, and the rights of citizens to access information also have close connection. Therefore, the status of protection of secret communication freedom and communication for citizens in people's life is becoming more and more important, with the development of modern science and technology, especially the development of Internet technology, the communication freedom and communication secret protection are also increasingly rich content.

   Freedom and privacy of correspondence of citizens are not violated, refers to the citizens through letters, telephone, telecommunications and other means of communication, according to the wishes of their own free communication without interference from others free. Therefore, anyone or any organization shall infringe upon the freedom and privacy of correspondence of citizens for any reason, shall not be detained, destroying, or illegally open other people's letters, not private read letters to others, not tapping another phone, not illegal interception, tampering, delete others e-mail or other data, not to others to provide telecommunications users through the network transmission of information content. Otherwise, should bear the corresponding legal responsibility. "PRC Criminal Law" the 252nd stipulation: "conceal, destroy or illegally open other people's letters, infringement of citizens' right to freedom of correspondence, if the circumstances are serious, a years in prison or detention." "Postal law" of the people's Republic of China stipulates that the thirty-sixth: "conceal, destroy or illegally open other people's letters, infringement of citizens' right to freedom of correspondence, if the circumstances are serious, shall be investigated for criminal responsibility in accordance with the provisions of the" PRC Criminal Law "in Article 149th; not serious enough for criminal punishment, shall be punished in accordance with the" Regulations of the people's Republic of China Public Security "article twenty-second of the regulations on administrative penalties." "Public Security Management Punishment Law of the people's Republic of China" forty-eighth article: "claim, destroying,, to open or illegal check email to others, to five days detention or a fine of five hundred yuan of the following." These Provisions, all is in order to make the correspondence freedom and constitutional citizen secret strictly protected, the citizen's basic right realization.

   Two, the basic rights of citizens and what the limits?

   There is no absolute right and freedom in the world, citizens in the enjoyment of basic rights and at the same time, also should assume corresponding obligations of basic. According to the provisions of the constitution, including the basic obligation of the citizen of our country: to safeguard national unification and ethnic unity and duties, abide by the Constitution and the law, keep state secrets, protect public property, observe labour discipline, observe public order and respect social morality, duty, safeguard national security, honor and interests of the obligation, to defend the motherland in accordance with the law, compulsory military service and join the militia, lawfully pay taxes duty. At the same time, needs the country is in the public interest, also be the fundamental rights of citizens to be restricted, in order to achieve the protection of the interests of most people. But, notably, to the citizen basic right limit, must have legal provisions and specific, must be strictly in accordance with legal conditions and procedures to implement. Because the basic right in constitution is fundamental, the basic characteristics determine that any organization or individual shall not be arbitrarily limits to these rights, otherwise, the basic rights of citizens can not be guaranteed.

   Similarly, civil liberties and privacy of communication is a basic right of citizens of the constitution, only under certain circumstances stipulated by law, be subject to certain restrictions. The Constitution stipulates that the fortieth, "the freedom and privacy of correspondence of our citizens are protected by law. Except for the needs of state security or of criminal investigation, inspection of communication by the public security organ or the procuratorial organs in accordance with legal procedures, no organization or individual may, for any reason, violations of freedom and privacy of correspondence of citizens." "Postal law of the people's Republic of China" the fourth stipulation: "the freedom and privacy of correspondence shall be protected by law. Except for the needs of state security or of criminal investigation, by the public security organ, the state security organ or the procuratorial organ of correspondence in accordance with legal procedures of examination, any organization or individual shall not be any reason to violation of freedom of communication and communications other people's secrets." Criminal procedure law stipulates that the 116th: "the investigators think need to detain suspects mail, telegraph, approval of the public security organ or the people's Procuratorate, notify the post and telecommunications offices to mail, telegraph inspection to seizure. When not needed to continue a seizure, the post and telecommunications offices should notice." From these provisions can be seen, the freedom and privacy of correspondence interference and restriction of citizens, must meet the following conditions: first, can only be executed by a public security organ, the state security organs, people's procuratorates, any other organization or individual have no right of citizens freedom of communication interference. Second, must be carried out in accordance with the procedures prescribed by law, usually with approval of the public security organ or the procuratorial organ. Third, must be based on national security and criminal investigation requires, in addition, without any justifiable reason to be composed of third kinds of state interference in civil communication freedom, but also to the citizens freedom of communication interference degree and national security, criminal investigation is necessary to adapt, can not interference don't interfere, the less interference is less as far as possible interference.

   According to the standard analysis of this case, we see not hard, the people's court as judicial organs of the state, has not been granted limited powers, civil liberties and privacy of communication at the same time, the county people's court to obtain communication user phone list in order to perform administrative cases, but not for the need of criminal investigation and national security, not in conformity with the provisions of the Constitution and the law for the inspection of Telecom content situation, therefore, the legal institution of the people's court not the law has the right to freedom of correspondence and communication constraints of a secret, because without the power telecommunications data obtained, through telephone list understand communication content and communication secret citizens.

   Three, the mobile user communication information in the detailed call list is protected by the constitution of communication secret category? Whether a people's court shall have the right to a mobile user detailed call list investigation?

   Although the Constitution stipulates that citizens enjoy the freedom and privacy of correspondence, but the freedom and privacy of correspondence is included those of content, the Constitution and the law does not define. Due to China's current constitution was promulgated on 1982, by the time the development of science and technology limited, the citizens "communication" is mostly confined to traditional text writing, therefore, the connotation of secret communication freedom and communication citizens mainly been defined as "citizens make without the use of communication, the use of any form of communication, communication and who, when the communication" problem. In recent years, with the progress of science and technology, the popularization of telephone and Internet, electronic communication has become the main form of civil communication freedom and privacy of correspondence, content more rich, then, communication more performance for citizens "what kind of communication network, the telecommunication tools and communication, who, through what the letter, through long time" etc..

   Mobile user communication information in the detailed call list belongs to a kind of telecom data, mainly includes the calling number, Bei Jiao number, talk time and talk time and call cost etc.. Although from a telephone list can not see the specific contents of communication in the traditional sense, but the detailed call list clearly reflects a person's communication object, communication time, call a lot of personal privacy and secret law, an important part should be communication content, communication secret belongs to the category of constitutional protection.

   At the same time, according to China's "civil law", "Criminal Procedure Law" and "administrative procedure law" provisions of the people's court, the need for investigating the facts of the case, the right to exercise jurisdiction in the proceedings, the right to investigate the relevant units and individuals forensics. But the investigation of the people's court, must also be consistent with the provisions of the constitution, shall not infringe upon the basic rights protected by the constitution. Our constitution has expressly provided, except for the needs of state security or of criminal investigation, inspection of communication by the public security organ or the procuratorial organs in accordance with legal procedures, no organization or individual may, for any reason, infringe upon the freedom and privacy of correspondence. This provision excludes any power of court proceedings in the telecommunications law obtaining evidence, the people's court in accordance with the provisions of the civil procedure law "" investigation, must comply with the provisions of the constitution, shall not be infringed the citizen's fundamental rights. That is to say, unless the consent and permission, otherwise, the people's court shall not be any reason to check the citizen communication content, understand the civil status of communication, communication secret infringement of citizens.

   Four, the constitutional rights of citizens are infringed should be how to protect?

   It mainly relates to the enforcement of the Constitution and the suitable question. The constitution is the law, since the law of course, should get the people to obey, implementation and application, in violation of the constitution should also bear the corresponding legal responsibility. In order to ensure the implementation of the constitution, countries in the world mainly adopt three kinds of different security system, one is implemented by the judicial organ to protect the constitutional, such as American is by the Federal Supreme Court to review the Congress and the government to enact laws and behavior whether accord with the constitution; second is the legislature to guarantee the implementation of constitution, such as the UK is by Parliament judgment state laws and action is unconstitutional; the third is by the specialized agencies responsible for ensuring the enforcement of the constitution, such as France is the establishment of the constitutional court to judicial review of laws, regulations and government behavior. In these systems, the implementation of the constitution protection authority shall have the right to review the various acts of violation of the constitution, make sure it is illegal and invalid or is not applicable, in some countries, the violation of the rights of citizens or legal persons, can also directly to the implementation of the constitution the request or Litigation Authority, to protect their constitutional rights, to investigate the legal liability of judicial person.

   In our country, in order to safeguard the constitution the fundamental law of the state to implement, have also established corresponding safeguard mechanism: first, constitution is the fundamental law of the state, has the highest legal effect, and all the laws, rules and regulations may contravene the constitution is the constitution, all the organs, organizations and individual citizens and the fundamental behavior criterion, these regulations provide a powerful guarantee for the implementation of the Constitution itself; secondly, the provisions of the constitution Chinese Communist Party and other party, organization, must be in the range of constitution and laws, exemplary and leading to comply with and implement the constitution, provides political guarantee for the enforcement of the constitution; third, the Constitution not only people's all the rules must be conscientiously abide by the constitution, but also for the maintenance of the dignity of the constitution, monitoring the government abide by the Constitution and the safeguard constitution implementation responsibilities, provide social security for the constitution. Fourth, Constitution clearly stipulates that the implementation of the constitution supervision organ, the implementation of the National People's Congress is responsible for revising the Constitution and supervision of the constitution, the NPC Standing Committee is responsible for the interpretation of the implementation of the constitution, constitutional supervision. At the same time, in 2000 promulgated the "legislation law", rank of validity of legal documents of different organs to develop further clear division, the conflicts between different laws provisions of the ruling system, change or cancellation system, review of the record system and by the people standing committee for the unconstitutional review system, established the basic with Chinese characteristics of constitutional safeguard mechanism.

   However, we should also clearly see, the constitution of our country at the present stage of implementation guarantee mechanism also has some obvious shortcomings, in many advanced countries and the trend of the world behind to a great extent. This mainly displays in: first, the lack of specialized constitution implementation safeguard mechanism, so that the National Congress and its Standing Committee to implement the constitution, supervise the implementation of the constitution of the responsibility can not be truly implemented; second, lack of provisions of the law enforcement of the constitution of the substantive and procedural feasible, security, that the constitutional review and constitutional responsibility still remain in the theoretical level, cannot be converted to the reality; third, the authority of the Constitution and the actual effect also exists some errors in the understanding of the importance of the constitution, safeguard mechanism also understanding insufficiency, the state organs and citizens to ignore, ignore the constitution of constitutional liability issues, are to a certain extent, therefore, to maintain the authority of the constitution, to guarantee the implementation of constitution, not only to improve the implementation of the constitution guarantee system, but also enhance the constitution consciousness, cultivate the spirit of the constitution of citizens.

   Through the above analysis, we can know that, under the current system in China, any person who violates the constitution, or constitutional rights had been violated, the ways to resolve: one is by the power of the state organs of instituting unconstitutional law review according to the requirements of the two National People's Congress, other organs, social organizations, citizens directly to the people's Congress unconstitutional review application, by the relevant authorities after review reply or to decide whether or not to revoke or modify the law. In addition, citizens can reflect directly to the National People's Congress or the State Council, they cancel these illegal or inappropriate laws, regulations, decisions and orders. Notably, the constitutional rights of citizens are infringed, it can not be directly to the people's court for constitutional litigation. But according to the Supreme People's court in 2001 twenty-fifth, the judicial interpretation, the infringement of citizens' right of name means the violation of citizen, according to the constitution, the fundamental right to education have enjoyed, and caused the damage of concrete results, shall bear civil liability. In fact, to allow the citizens in violation of constitutional rights, and caused the damage results in the case, by way of filing a civil lawsuit, to protect their constitutional rights. Of course, this attempt is very limited, is not a long-term solution, fundamentally speaking, the implementation of the constitution still need the system, mechanism and improve the procedures and specific protection.

   Through the above analysis, we can draw the conclusion, freedom and privacy of correspondence of citizens is the basic constitutional rights of citizens, the right subject to strict legal protection, any person shall not be violated. For the citizen basic right limit is limited to specific situations the constitution regulations. The mobile user information in the detailed call list reflects a lot of personal privacy and secret communication, belonging to the constitutional protection of privacy of communication category, the people's court shall not have the right to check. The people's court for investigation in accordance with the provisions of the civil procedure law, must comply with the relevant provisions of the constitution, and may not infringe upon the freedom and privacy of correspondence and other basic rights.
 
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