Constitutional rights remedy

The constitutional rights of relief right

(the justifiable defense in civil law and the criminal law of the self-help behavior)
There, the provisions of our constitution about the remedy of civic rights power problem
If rights can not obtain relief, it is not the right, is usually said "no relief, no right", but this is the premise of existence in certain rights from the reverse side if not be effective protection to the right, then right no method to achieve, but if the right no, there is no possibility of relief. Right relief right belongs to a basic right which contains the contents of the basic rights, which in fact are not independent. The constitution is the guarantee of the rights of every person [1] "social contract", it is the first one to guarantee the basic rights of citizens "law", the highest legal effect for the common law, content and way of protecting the rights of citizens is the realization of the provisions of the common law should be, these are generally reflected in the procedure law and the administrative reconsideration and other laws. Therefore, the right to relief rights as a citizen's basic right is not appropriate, at least not legal logic system.
Enumerated in the constitution of China's civil rights relief right, right, right to criticize the report right, the right of complaint, the right to appeal and the right to get state compensation. The right to criticize that belongs to the category of political freedom; suggestions and impeach right not included in the rights remedy, because get relief the exercise of this right does not make the citizens' basic rights have been violated. While the right of complaint and appeal rights contained in the litigation right in. Since the constitution is to protect civil rights, when the right is from the state organs and functionaries violates, citizens have the right to obtain the state compensation constitution civil rights relief should have meaning, but also the inevitable requirement of the justice of law. The constitution is the "law of law", the detached position to decide the common law, legislators should also ensure the realization of the right of relief right in the constitution right, is the obligation of the state to provide the security, the citizen is the right remedy right.
The right to relief the constitution of our country constitutional rights does not rule out the possibility of positive factors. In the concept of weak China constitution, people are accustomed to the specified in the Constitution for the machinery to create a legal basis, in China towards the rule of law in the process of constitutional rights, the right of remedy is to protect human rights legislation to promote. For example, perhaps if the Constitution does not provide citizens with the right to national compensation, the "State Compensation Law" may delay introduced. Because on the surface, the provisions of the constitution of the ordinary law if not matched with it, it is easy to see the bug causing legislation impulse, so perfect it. But this requires us not because of its positive factors and eliminate the unreasonable.
The Constitution stipulates that citizens of the state organs and their staff relief against the right, but not the provisions of citizens from state organs other than the right infringement relief. For example, without stipulating that citizens have the right to file a lawsuit. "Given the times have changed, the structure of society, from agriculture into industry. The social structure change, obviously effect to basic rights. In the industrial society under the civil law of survival, freedom of contract, autonomy of private law ", have no meaning to its. The dignity of the individual and the violation of basic rights, in addition to countries outside, the essence of social forces, it is one of the main sources of". [2] it can be seen from state organs other than the provisions of civil relief against the right of equal importance. The provisions of this constitution right relief right is undoubtedly exposed Chinese constituent is not mature. If as expressly provided to highlight the rights relief right in constitution, changes can be summarized as an "citizens' basic rights have been violated has the right to obtain relief", so as to reflect the constitution of high generality and "everywhere", and in conformity with the constitution as the logical method.
Two, the constitutional rights of citizens relief right current situation and deficiency of legislation
Right of claim right relief as a guarantee of realizing the right, its security is "self-help" and "remedy" two ways of [3]. Administrative reconsideration, litigation, national compensation to his relief; self-defense and self-help behavior of self relief. The citizens on the staff of state organs and state organs of the right of complaint, the right to appeal in administrative regulations and administrative reconsideration system there are provisions. According to many scholars to understand the constitution, the provisions of article forty-second "complaint" and "appeal" right is thought to contain in the litigation right, then right and right relief corresponding is "charged" rights and "complaint" right and get state compensation right [4]; citizen right of compensation with the "state compensation method" and other laws; and civil rights have been infringed his relief mostly by litigation, litigation has become the most effective way of relief of relief, the ultimate he force. The self-help behavior of self-defense and civil law provisions of the criminal law on that belongs to self relief.
In order to realize the rights remedy of rights must be perfect. In his relief, the state compensation has many limitations on the scope, and the civil damage, state compensation for direct losses only, not for indirect loss; just compensation for property loss, no compensation for mental loss. So the basic spirit of the provisions of this remedy and constitutional rights were not consistent, need to be perfected.
Since the constitutional role mainly in order to limit the power to protect the rights, and as the supreme status of the law of rights in the common law is not specified, the constitutional rights had been violated or disputes, the state has the obligation to provide remedies for this situation, which relates to the case whether the Constitution can be applied to problems. "Qi Yuqin v. Chen Xiaoqi" case, creating a precedent for judicial application of the constitution. This relief is civil litigation relief mode, but due to the increase in the case of the constitution to protect the rights of citizens, which enlarges the range of the constitutional rights of citizens relief.
When the subject of right stipulated in the constitution that the provisions of common law violation of his constitutional rights, in the case of this relief is related to the question of constitutional rights litigation. It requires the relevant authorities in accordance with certain procedures to determine the law is unconstitutional, so that common law is valid. Someone will this constitutional litigation is defined as: the constitutional litigation is a litigation to resolve constitutional issues, is based on the maximum value of the constitution, by specific agencies in accordance with legal procedures to review the constitutionality of the law or not, determine whether the law is unconstitutional and invalidates the unconstitutional law a system [5]. Not established this system in our country, from the view of jurisprudence, the establishment of such a system is very important. The remedy can make the constitutional rights of citizens are guaranteed in law violated, so that the right relief system gradually complete.
In his relief especially national relief we should consider is the fairness, timeliness. The first consideration in the relief of authorized national law, such as the right of justifiable defense. This requires States to enact laws, give full consideration to the importance of citizen, weigh the advantages and disadvantages of self-help, self-help for citizens to provide a legal basis, but also can guarantee the rights of the counter from undue damage. In the remedy system of rights relief is undoubtedly the most timely and effective, but the problem of self relief conditions and methods must have clear legal provisions, and make careful, perfect.
Three, improve the civil rights relief right legislation, guarantee the rights of citizens relief right
Due to the diversity of the constitutional rights, which requires the right relief way diversification, even if citizens the same rights had been violated, can also use a variety of ways to remedy. For example, the personality of citizens have been an insult, the victim may apply to the administrative department of public security complaint asks the administrative responsibility of perpetrators, can also bring a civil action to the court for the prosecution of civil liability. The state as the protection of civil rights, have the obligation to develop and perfect the remedy legal rights, and make it become a strict system, protecting the constitutional rights of citizens. "International Convention on Civil and political rights" in addition to the provisions of the legislative relief, administrative relief and other relief, also provides a number of remedial measures. For example, people who had been sentenced to death shall have the right to seek pardon, pardon or commutation of the sentence, for personal protection and the power of judicial review. All these require national duty of care more in creating the right relief aspect legislation.
We can see that the right relief is a kind of attached to the constitutional rights of citizens from the right, or is the right to request a broad citizen to the state for the protection of, need to leave the specific constitutional rights did not talk about this right, but the constitutional rights had been violated often rely on the country provides the basis and guarantee for the rights of citizens relief to what extent, or citizens is violated when can choose to their advantage of relief in the constitutional rights. For the citizens to provide rigorous, perfect and feasible but without losing the fair value of the legal relief system is a national obligation of citizens, is the right of the citizens of the state relief right. We can not only see the Constitution stipulates that citizens have the right or remedy, but should pay great attention to common law is the basic rights of citizens are infringed provides relief, and whether in real life are the real implementation. The constitution specified rights the rights of citizens is not required, and the ordinary law the constitution protects the right of citizens to specific constitutional rights, the law must provide the constitutional rights of citizens relief or remedy system, and make the relief diversification, systematic, and can carry out, or the relevant provisions of the relief of rights of citizens the law is flawed.