The equal right of a constitution

(a) the content of the right to equality in the Constitution

The "constitution" the thirty-third provisions of the second paragraph of citizens of the people's Republic of China are equal before the law. This is regarded as the equal right of the constitution, all citizens are equal before the law, unreasonable differences prohibits any form of treatment.

The equal right to the most basic human rights -- most important -- human dignity and the personality, namely human dignity and inviolability and personality equality based on anyone, regardless of their identity, status, gender and other factors, should be treated equally, prohibition of unreasonable differential treatment.

For the equal right understanding, a kind of viewpoint thinks: equal right is a principle, at the same time it is a right, or both rights and principle characteristics. 1 the real agree. Only in the above definition under the principle of equality of equal rights and civil law in the constitution is only feasible, and meaningful.

The equal right in the constitution should include the following contents:

1 citizens are equal before the law. Emphasis on countries in the law of equal treatment of every citizen, will not allow citizens to grade or other unreasonable form, this division or by the identity or property or religion or gender.

2 citizens have equal opportunities to engage in certain activities or qualification. The core of the equality rights of this content is the constitution, constitutional right of equality in essence belongs to a qualification right or opportunity right. The citizens with certain qualifications or the opportunity to engage in a behavior right.

3 citizens have the right to request to realize the national security of the right of equality, provide the necessary relief to the right infringement. This is the constitutional right of equality guarantee basis. There must be a right of relief, no relief right is a feeble cry.

(two) based on the theory of constitutional right of equality

Equal rights established by the constitution refers to the state and citizen rights, which is a citizen's right, the duty of the state. All modern constitutional theory: the sovereignty of the people, is the whole national is the source of the legitimacy of power, legitimacy of a country. All the national objective social collective defense based on the national authorities, through legal procedures, and this foundation is the constitution. Therefore, the constitution to draw a line between state power and civil rights, and no state beyond the limits of relative. The boundaries of the side is "political", the other side is "civil society". Countries should cross the line into the private sector, there must be adequate and legitimate reasons, otherwise the country should assume corresponding responsibility.

State power and civil rights belong to different categories, based on this, legal theorist will assume the distribution of power between the state organs and the exercise of state power and obligation into public law; among citizens and the rights and obligations of the designated jurisdiction category.

The core is: sources, the national power distribution and balance, the human rights safeguard.

The core problem of equal rights of constitution which is to solve the problem of attitude countries treat citizens, equal rights between state and citizens, the provisions of the state under the equal treatment of every citizen, do make no exception, and not all citizens rank, do good or bad, do unreasonable discrimination.

Equal rights, on the other hand, is a civil rights enjoyed by the relative to national, state has the duty to protect the citizen constitutional right of equality. In real life, that is to say people in dealing with state authorities and their representatives, have the right to request the state authorities and obtain the same with other citizens, organs of state and its representatives have an obligation to the citizens of this reasonable expectation equal to achieve the obligation.

Here on behalf of the state by state organs including the access authorization and essentially in the exercise of state power organization, even if it is not in the name of state organs in front of the world, only is the exercise of the State shall be forms of power can be.

So even if not in the name of the state to exercise some state power but to other organizations to exercise a power of the state, the exercise of this power that some citizens have unreasonable differential treatment, which is a violation of the equal right of the basic spirit of the constitution.

The principle of equality of civil law on two and its relationship with the constitutional right of equality

"General principles of civil law" third stipulates equal position of the parties in civil activities. This is regarded as the civil law principle of equality. In civil law, the dominant position of equality refers to equal legal status in civil law, the specialized terminology is "equality of rights ability of expression". 2

The principle of equality of civil law is actually the parties in civil activities, the ability to right sides are equal, there is not a party to the other party's advantage. This equality is pointing to a natural state, the reality is not so. The so-called equality is only theory of civil law to the assumed conditions, in reality many there are examples of the parties in civil activities are not equal.

The principle of equal rights and equal relationship between civil law on the three constitution

(a) in the civil law has no right to equality in the Constitution

The private sector does not exist in the existing constitutional meaning of "equal rights" is a controversial issue.

The author thinks, constitution as the fundamental law of a country, the equal right to rule is a rigid, such provisions shall not apply for "autonomy" of the room, the most essential point equality principle of equality in the constitution is different from the individual by civil law is it when the freedom to dispose of their ability the right.

In addition, equal rights and constitution of the civil law principle of equality is not belong to the same category, if the standard between the state and the citizens' right to equality onto the field of private law, is bound to shake the private pillar -- "the principle of autonomy".

Imagine a country as a duty to the ordinary citizen, we live in the world will be a kind of world? A citizen should be equal to every citizen, if a little different, suffer discrimination people resorting to legal requirements to protect equality themselves by the constitution.

This will equal rights in constitution is projected to the private law idea itself is the denotation and connotation of constitutional right of equality are not clearly defined, not allowed to grasp the performance. If the two party is to proceed from the one to the other of the relationship, is fundamentally confusing the fundamental difference between the Constitution and civil law -- the constitution belongs to public law, adjustment between the state and the citizen's rights and obligations; civil law as private law more retained the "autonomy", allow the parties to establish the relationship of rights and obligations.

The equal rights in constitution onto the civil law field, it deviates from the basic principles and spirit of the constitution. The constitution is to protect the basic human rights of citizens, the connotation of these basic human rights is meaning to civil law is the civil rights of citizens. It is not the basic human rights of all meaning in the civil field, find the corresponding civil rights.

If in order to realize the equal right in the constitution, the state power beyond its scope of law, turn into the civil field, the individual free will wantonly interfere, this is not a constitutional protection of equality right person, but the dignity of the person and aggression. In order to achieve a kind of guarantee of human rights, and ignore another more liberties the important man, this is what we want?

(two) to construct the equal right of civil law relates to the theory of civil law system

The field of private law is the most important "freedom", such as a manager, I can set the group enjoys what preferential treatment. This provision is not involved in the issue of constitutional right of equality, the content is operator business freedom, no ground for blame.

The field of private law, involves the interaction between the individual citizen, as long as it does not violate the law, should be recognized effectively.

The principle of equality is the civil theory in civil law to start the foundation, the theory of civil law as the foundation of the theory of civil law to build unique, outlines the scope of civil law that is between equal subjects of personal relations and property relations, so as to draw with other legal adjustment range.

The principle of equality in the area of civil law is a very important. One of the prerequisite to engage in civil activities is to assume civil activities of the parties are equal in status, in fact the status of the parties equality or whatever. So the equality principle in civil law is civil law theory to expand the cornerstone, is a hypothetical legal theorists. Only on the basis of equality assumptions, have paid equivalence between the parties, justice at all, only the private sector does not exist results a free possession of the other party work. For two different private subject in civil field is not which one is more important, the merits of points, two are in the same starting point in private law, the status of the equality, the freedom of the will, so it does not allow one party to another party, does not allow the unequal exchange, do not allow the exchange of unfair.

   Once the violation of the principle of equality, private law must remedy. Most of the private law relief terms, is basically to compensate for the practical problems of private law subject equal the hypothesis generated way. Private law stipulates the equality of the parties, in accordance with the law in the civil law should be reasonable to expect interest. The reality is that exists in the practice of inequality is too much, the main one is often at a disadvantage. The law cannot abandon the realistic and theoretical, so it must have to solve the problem of inequality exists in reality and the problems of private law impact.

(three) the constitutional equal rights and civil law principle of equality to solve different problems

Social constitution and civil law adjusts the social relations adjusted by are two totally different relation. Two adjustment does not exist inclusion relations, two different areas but independent of each other. The relationship between the state and citizen constitution adjustment, not involving the relationship between citizens and the citizens. The right of equality in the constitution is mainly to solve the problems of countries treat citizens, namely equal treatment of every citizen, equal rights to create conditions for the realization of citizen's equal rights, and to civil violations shall be timely relief. The civil law principle is mainly to solve the basic criterion and citizens should observe in civil activities, does not involve the relation between government and citizen. Therefore, the civil law principle of equality of citizens engaged in the main to solve civil behavior towards to the other side of the problem, if there is a violation of the principle of equality situation, countries will not take the initiative to intervene, but by the parties to apply for a national judicial organ to the corresponding judicial relief.

Common equality principle of equal rights and civil law on the four constitution

The principle of equality of equal rights and civil law the constitution of have a common pursuit of value, which in reality is because status, identity, gender, race, religion and other factors and the inequality, but the human dignity and the personality is no distinction, this "everyone is equal the law is to confirm and protect human dignity and personality on the".         Even if this equality is only an "ideal state", but at least that the government and people have been aware of the inequality brings problems in reality, and tries to pass laws to create a "should be", to promote the reality of inequality toward equality for all direction.

1 Wu Shuang: "equal rights" theory of the constitution, contained in the "Southern journal", 2008 second.

2 Jiang Ping editor: "civil law", China University of Political Science and Law press, 2007 November edition, page thirty-second.

(the author Department of China University of Political Science and Law, master of Law School of law Master)