The original "Law Review" in 2013 second

AbstractArticle forty-ninth: our constitution belongs to the special provisions of the constitution, it must be placed under the theoretical framework of specific explanation. The guarantee of the system and the protection of basic rights in parallel, mainly used for the protection of traditional, the existing public law and private law system, its security is the core which can not be abolished the system of legislation, but the regulations on non core system. Marriage, the family as a private law system, is still protected by the constitution, the Constitution by imposing obligations to lawmakers to maintain the core of this system.

Subject headings: institutional guaranteeThe duty of the stateThe core system

 

 

China's constitution stipulates that the forty-ninth:

Marriage, family, mother and child are protected by the state.
Both husband and wife have the duty to practise family planning.
Parents have the custody of minor children of compulsory education, adult children have the obligation to support and assist their parents.
Violation of the freedom of marriage is prohibited, banned the maltreatment of old people, women and children.

From the provisions of view, belongs to the ` special constitution. Its particularity at least embodied in the following three aspects: (1) this article although in the citizen basic right part,[1]But it does not reflect the obvious characteristics of rights. For example, the first paragraph of this article only provides, marriage, family, mother and child are protected by the state. At the same time, although the provisions of the fourth paragraph of this article first half sentence, no violation of the freedom of marriage, but it seems that few scholars will freedom of marriage as a basic right of the citizen of our country. (2) this article although in the basic rights of the citizens, but second, 3 is about the citizen basic obligations, thus showing a mixed features a "rights and obligations".[II](3) the academic research on this little. Most textbooks and works only in the constitutional basic rights classification mentioned in the article, the lack of specific interpretation.[3]

For this particular constitution how explanation? The author thinks, should be incorporated under the certain theory frame. Or, the special provisions of the constitution must present a theoretical situation is different with other provisions. In fact, as early as in 1928, the German constitutional law scholar Karl Schmidt proposed the institutional guarantee for the basic rights theory in part but not have the fundamental right to form.

One, system security theory

(a) the origin of security system theory

About the origin of theory of system security, some scholars believe that the earliest is derived from the French scholar Maurice Hauriou. In the development of Germany, after Friedrich Giese, Martin Wolf, Heinrich Triepel, Ludwig Waldecker, Rudolf Smend, and finally to Schmidt the great.④

Schmidt in his theory of "constitution" in a book that, should be the guarantee of the system and the basic right to distinguish.5Schmidt called the security system has two kinds of meanings: one refers to the constitutional regulations, can provide a special protection for certain system. Schmidt points out, people often is not accurate language to talk about the basic rights, although the structure of this kind of security both in logic and in laws are completely different from the basic right structure.⑥However, the end the system of basic rights and the difference? Schmidt also pointed out, it (security system -- the) exist only in the country, is not based on the concept of free field in principle is not restricted, but relates to a legally recognized by the system. This system has a limited range and domain, services to certain tasks and goals, though the task is no special subdivision, but allow a wide range of motion "".⑦Therefore, to understand the meaning of Schmidt's system, we must talk about Schmidt to the basic right understanding. Schmidt in the book "a constitutional theory" also shows his basic rights. He said, the basic rights of national rule of law are regarded as prior to the state or override national rights, the state is not in accordance with its laws to grant these rights, but these rights as prior to the state and the existence of things to be recognized and protected, countries can only in a predictable range in principle, and according to procedures of violations of these rights. Therefore, in essence, these basic rights are not legal rights, but rights -- specifically, right to defense -- free field produced by the.⑧Then, he said, all the basic rights are the basic rights of real absolute, they are not "in accordance with the law" to safeguard, its content is not from the law, on the contrary, any legal intervention are exceptions, and belongs to the restricted principle, predictable, subject to exceptions to general regulations.⑨Therefore, in the eyes of Schmidt, and the system of fundamental rights exists at least two differences: (1) system is within the state, or is formed by law, and the basic right is prior to the state; (2) system can be restricted, or restricted is normal, and the basic right is in principle unrestricted, or limited exceptions. Of course, this summary only from the opposite defined system, if from the front to define, scholars have pointed out, Schmidt's system is a complex, a typical traditional.⑩Thus, the system has three characteristics: (1) the traditional, refers to the formation or history of established meaning traditionally, existing goods and the Constitution in force. (2) is a typical nature, the law refers to the date of entry into force of the constitution of the typical characteristics of the,.11(3) a set of interrelated or complementary law. Schmidt had the Weimar constitution provisions about religious groups and organizations as an example, explains how to construct a so-called "religious groups as institutional guarantee law association".12He also thinks, security system belong to this type of basic rights, including: Township prohibited exceptions court rules, marriage is the family life, the provisions of the basis for the rest day on Sunday, the provisions of private property right, civil rights provisions, to research the guarantee of freedom. Two refers to the basic rights of natural group or group, the basic rights of the so-called actually is a kind of institutional guarantee. Such as family itself is not the basic rights, the true sense of the same, family members themselves are not the true sense of the basic rights. The family can only as a system and protected by the constitutional law.13Visible, in this, Schmidt still is opposite from basic rights to define the system, that is not in the list of basic rights, it might fall into the category of the system.

The reason why Schmidt puts forward the system of security theory, not only to the system and the basic rights of distinction, is mainly to poor effectiveness of basic rights in the constitution provisions Weimar overcome. The basic idea of right was monopolized by the two kinds of consciousness: a simple program, that the basic rights are not significant in the empirical method, is at best a good statement, the politics of proverbs, pious wish, the Framers' monologue. Two is the basic rights were placed in the reservation of law, shall be subject to legal positivism, in order to operate, thus protecting the basic rights of the public opinion agencies rely entirely on the law. Therefore, the effectiveness of basic rights in the legislation as the object, but only for the applicable law of administrative organs and judicial organs.14The lack of basic rights and potency compared, theory of institutional guarantee Schmidt becomes much more powerful. According to Schmidt's view, security system is to prevent from lawmakers violated security, in other words, the system safeguard provisions, be abolished not purely to the legislative way.15Thus, institutional guarantee Schmidt can achieve similar to the constitutional law degree, the system reserves the right to abolish the constitution, and also to the legislators not abolished the system obligations, resulting in the binding on the legislature. These are the guarantee of the system than the protection of basic rights superior performance. But, as with the basic rights, Schmidt also think, legislators can limit system. At the same time, lawmakers to limit itself has limitations, namely the legislators not core to the system is abolished or changed.16

A theory of system security Schmidt has innovation, is also a pragmatic side. The innovation lies in he keenly aware of the difference between the system and the basic rights, pragmatic place that he hoped "to guarantee the basic rights to" create a path to strengthen basic right effect. Of course, Schmidt's theory has left many outstanding matters, such as what is the system, security system and how to protect the rights of the relationship, understanding the core of the system.

(two) the development of security system theory

Since Schmidt put forward the theory background of institutional guarantee is in the constitution of Weimar basic right effect not clear case, therefore, when the background disappear, especially with the German Basic Law promulgated, basic rights has effect of direct constraints, administrative, judicial legislation, on the system security theory of scepticism is more and more.17Of course, some scholars think, theory system guarantee of Schmidt is not out of date, the main reason is the system and the basic right segmentation still exists, on the other hand, is the institutional guarantee can strengthen the function of basic rights play. Thus, recent discussion about security system theory, mainly focuses on its relationship with the basic right to start.

Early on, Schmidt will be the guarantee of the system and the basic rights are two points, however, he gradually realized that this dichotomy problem. Especially when he's in the security system on property right, property right is clearly the basic rights, so, it is what security system? Therefore, later, Schmidt has given up the security system and the subjective rights can only be chosen the existence of views, but to explore what kind of security problems, which for the post World War II system security theory buried a foreshadowing of development.

At present, according to the relations between institutional guarantee and basic rights, can be divided into: (1) security system has nothing to do with the fundamental rights. This security system can be said to be the classic sense, namely institutional guarantee Schmidt said. It refers to the constitutional norms, with some specific category, task and purpose of the system should be recognized by the constitution, by the constitution of special protection, not legislators formulate or amend the law can be abandoned by.18These systems are mostly in the constitution that existed when the existing system, guaranteed by the constitution has the significance of status guarantee. Typical is the system of local autonomy; (2) security system closely related with basic rights. This is the nature of the system security as a fundamental right, objective method to understand. Properties of basic rights objective method is the basic rights as a human and all state power should be respected, objective value and the nation a respect and protect basic rights on behalf of the obligations, the obligations it has no request, but if the country in violation of such obligations, still constitutes a violation of the constitution, to undertake the responsibility. On behalf of the state in order to protect the basic rights of the value to be realized, must take some measures, such as the duty to protect fundamental rights (national obligations according to the provisions of the basic rights, the protection of fundamental rights of the people from other people's basic rights infringement), organization and function of interpretation and application program (National Program regulations and organization regulations, we should respect the fundamental rights of objective value order, but this value order to national development process and organizational regulations).19Therefore, as the basic rights of the objective law for the security system similar to the one of "the country through some system to ensure the realization of basic rights" meaning. In this sense system, will include all countries may take the protection of basic rights realization means, is bound to become a Everything is contained therein. concept,20Even become synonymous with the objective nature of fundamental rights. How is the biggest problem with this system connotation expansion processing oriented relationship and other fundamental rights, the objective law, especially how to differentiate and basic rights organization and function. Therefore, the concept of system security scholars claim shall return to traditional,21Even some scholars believe that the security system is the interpretation of extra theory structure.22

Therefore, the author thinks, the institutional guarantee property rights as the objective method to understand the basic rights, similar to speak to H ä Berle has dual character, namely, the rights of the individual and institutional. This understanding is and the German Federal Constitutional Court on the basic rights of institutional understanding (for example, from publishing to derive the free publishing system, freedom is derived from private freedom of teaching in private school system, derived from the academic freedom of free academic system and so on), the more the main or see the security system of simple right security reinforcement.23However, this kind of understanding is the connotation of defect fuzzy, countries want to realize their basic rights to establish what system? In fact, from the German federal constitutional court system understanding about the freedom of the press, radio and television, such as freedom of academic freedom, mainly based organization and procedures related to,24So, security system and as basic rights organization and program function explicitly stated.25Therefore, the author thinks, the classic meaning to system security is necessary, which is to emphasize the traditional system and the pre existence.

Two, the marriage, family system

(a) the meaning of marriage, family

Marriage and family, are two closely related concepts in the tradition, this is because the traditional family is established on the basis of marriage.26But in fact, there is no necessary connection of marriage and family. According to the "Ci Hai" explanation, the family refers to the common life tissue caused by blood or marriage, adoption among relatives.27Visible, in addition to outside marriage, the family can also be caused by blood, adoption, such as single, surrogacy, asexual reproduction and other components of the family. Especially with the emergence of more gay, is the traditional based on marriage and family formed a huge impact. So some scholars distinguish between family and social significance of the legal sense of the family. The former refers to the legal marriage, family, and the latter refers to whether marriage is legal, but in essence cohabitation coexistence, have permanent life essence family.28This, I think, if the nature of family life, should not be too much emphasis on marriage and the family, otherwise it will lead to a smaller scope of constitutional protection. At the same time, from the perspective of comparative law, the Federal Constitutional Court of Germany in the interpretation of the basic law on the family concept also avoid family is based on marriage and the establishment of the group of this one problem, and only preliminary says the family is parents and children together groups, rights and obligations of the parents have the protection and child rearing.29However, the federal constitutional court is not the concept generalization family to all cohabitation groups, because it made the following limits on family members: (1) the family should not be understood as multi generation family, which can only parents and children; (2) the children even have become years, not directly from the family the task, because the family is not only to nurture children to adulthood, but in the face of crisis of spiritual enhancement; (3) as for the children, parents should contain different children, adopted children, even children born out of wedlock.30Contact the German experience, visible elements of constitution on the concept of family has two: (1) to live together for the purpose of, as for what reasons, while living together in question; (2) composed of parents and children, the parents and children here will not be, father and son, mother and daughter, single the family line. But only if parents or children can not constitute the only family.

About marriage, "Ci Hai" will explain for men and women to become husband and wife.31People usually take marriage into the legal sense of the marriage and the de facto marriage. The former refers to the national recognition of marriage, the latter refers to the country does not admit or not admit program to fulfill the national marriage. From the German federal constitutional court interpretation, seems to only admit the legal meaning of marriage. Because its defining marriage as: both men and women based on free will, with the national legal way, living together for so long (in principle does not relieve) combined with for the purpose.32Therefore, the author thinks, the marriage as a legal system, nature should be based on legal marriage as the connotation. The biggest challenge for the institution of marriage now is gay, because the traditional marriage is based on specific. Of course, if starting from the institutional support for marriage, the constitution is the traditional, to save the marriage system, namely human long-term heterosexual marriage. But does this suggest that being gay is not guaranteed by the Constitution? The author thinks otherwise, we can only say that homosexuality is not affected by the institution of marriage constitutional protection, but it is still under the constitutional system and other basic rights, such as freedom of contract.33The Federal Constitutional Court of Germany in the 2002 "partner" in the case law that, introducing same-sex couples do not contravene the provisions of the basic law system sixth. The basic law article sixth for marriage and family special protection is not due to same-sex couples also have similar and couples the same rights and obligations and hindered. Because a marriage is between a man and a woman as the premise, and same-sex couples the because of gender's sake, not marriage, marriage system is not because creating same-sex couples system is threatened, so any marriage ability person even in the presence of same-sex couples system, there are still complete freedom to decide whether or not each other to marriage. And through the provision of same-sex couples method and created new legal status, the rights and obligations between same-sex couples have legal protection, and the exclusion of same-sex couples is not fair.34

(two) the state protects the family members

Article first the constitution forty-ninth in addition to the provisions of marriage, family protection by the state, also provides for the mother, children are protected by the state. At the same time, forty-ninth fourth second half sentence and provisions, prohibits maltreatment of old people, women and children. Should say, mother, children, the elderly are family members. Of course, from the definition of the family, mothers, children is necessary members of the family, while the old man is a non essential members.35Women and mothers have many points in concept, but women's gender sense, such as family members daughter or no children's wife; while his mother is the growing sense, is mainly aimed at children.

1,Mother, the meaning of children

The mother is of special protection, one is based on the sex of the mother, on the other hand is the special status of mothers of their children is based on.36Traditionally, mother and child relationship with gene based on blood, and for the children of mothers. But with the development of science and technology, the relationship between the mother and the children become complicated. Especially the emergence of surrogacy, women by others' eggs or embryos pregnant person have, infertile couples to other women do have children there, which do the simple production, pregnancy to their eggs to infertile wife, eggs or in women's eggs pregnant production type. Thus the gene and the production of children from segmentation. The women's pregnancy, the child may not have blood relationship with maternal. In order to face the challenges brought about by the surrogate, definition of German civil law article 1591st mother was modified: mother refers to the production of women with children. According to the provisions, even if the maternal and children have no blood relationship, there is no harm to the identity of the mother.37

"Children" in the UN "Convention on the rights of the child" is defined as "any person under the age of 18, unless the applicable legal requirements of adult age below 18 years old." The Convention of children (child) is consistent with the concept of juvenile. But in our constitution, children and youth, youth is a relative concept, for example, the forty-sixth paragraph second, the national training of children and young people, in moral, intellectual, physical and other aspects of comprehensive development. Therefore, to understand the concept of the concept of children, must first clear youth, youth. According to the "dictionary" interpretation, youth means a 18-25 year old by the young to adult stage.38On juvenile, "Ci Hai" be interpreted as "young man",39The definition of natural shortcomings, the reason is: first what is young? Secondly, the constitution why special protection of young men, lack of proper reason. Therefore, we must take. The author from the criminal law on juvenile delinquency interpretation inspired, juvenile crime refers to the full 14 and 18 years of age, capacity limits of juvenile delinquency. Thus, children are minors under the age of 14, consistent with the interpretation of the children it with China's "criminal law" 240th article "the crime of trafficking in women and children,".40

2, mother, child protective obligation of the state

Article forty-ninth paragraph first requires the state to protect the mother, children, so, how to protect? From the provisions of section fourth of the constitution of forty-ninth, the national protection way at least: prohibits maltreatment of old people, women and children. Although the effect of basic rights in the state of general object, that is to say, violations of the fundamental rights of citizens is often the state. But from the use of the word abuse, countries are not here to abuse from object. Because even if the state of maltreatment of old people, women and children, which belongs to the infringement of citizens' personal rights, protection should not fall into the marriage, the family in terms of field. If the contact "criminal law" in the crime of abuse, where "ban the abuse" refers to the mutual abuse prohibited between family members. That is to say, the country has family maltreatment of old people, women, children, the duty of protection. The duty of protection function in the Constitution called basic rights.

The protection of fundamental rights is the obligation of the country has recognized legal and constitutional protection of its citizens on the system of compulsory, especially countries should protect people's life and health, freedom and property obligations.41The theory was first proposed by the German Federal Constitutional Court in two times before and after the abortion decision. The first abortion decision points out that, to respect and protect human dignity is the obligation of all the organs of state power. The duty of the state is not only prohibited countries take direct infringement in the development of life measures, more ordered state, in third people (including the fetus from the mother) of the violation, must protect, contributing to this kind of life.42Second the abortion decision and pointed out that, the Constitution not only prohibits countries directly against the unborn life, more ordered the country should protect, contributing to this kind of life, from the other party to illegal infringement defense. To fulfill this obligation, the state cannot rely on voluntary behavior in vain, also must develop a legal binding force, has the legal effect of the action command. These are the legal effect of the action commands can be two ways to achieve conservation goals: one is to harm or damage the protected interest at stake, take preventive or sanctions; second is to strengthen, support national about legal and illegal values, and even form the value consciousness.43Thus, the German Federal Constitutional Court is mainly to demonstrate the existence of fundamental rights protection duty from two aspects, one is from the nature of the objective law of fundamental rights (value), another is from human dignity.

(1) the scope of protection of fundamental human rights obligations

If the obligation to protect the basic rights of the said property from the basic rights of the objective law, the scope of duty of protection should cover all basic rights, and not confined to the dignity of the so-called core or some certain fundamental rights, especially from the point of view of equal rights, which contains the state should equal protection of all the value of fundamental rights decision. However, on the one hand, from the academic study, scholars mainly is to protect the basic rights of constitution obligation to seek from the individual basic rights prescribed in the text, and the main provisions of the constitution is the language, such as the basic law article first paragraph first and first indicate the inviolability of human dignity, and the use of other provisions basic rights can not be words with assault or protection, on the other hand, from the practice of the Federal Constitutional Court of Germany's federal constitutional court trial, only has the following basic rights established the country bears the duty of protection, especially for preventing the individual against the third party's obligations. Including: life, health, freedom, personality right and freedom of teaching, academic research, marriage and family, children, maternal occupation, property rights, freedom.44

(2) the connotation of fundamental rights protection obligations

About the connotation of fundamental rights protection obligations? The Federal Constitutional Court has pointed out that with the business managers in the prohibition of the referee, from the private contract restrictions to protect the freedom of occupation, the legislator should make some precautions in private law, especially in the equilibrium between both forces of non equivalent.45Thus, the obligation to protect the basic rights can give lawmakers a constitutional commission. The so-called constitutional entrust, refers to the Constitution in its provisions, only the provisions of principle, and entrust other state organs (especially legislators) to implement the specific details, sexual behavior.46

To fulfill the obligation of protecting the fundamental rights of first through the related laws, the German constitution scholars are unanimous opinion.47Of course, by formulating relevant laws, not necessarily can be full and final performance of duty of protection, especially the basic situation of legislators have, such as technology or natural science knowledge, may with the evolution of the times and changes. Therefore, protective measures for the legislator, may present shortage at any time, so as to promote the necessary protection level and the degree of. In this case, lawmakers have called "improvement and test duty". For example, the administrative organ in the provisions of related laws, such as the display of legal protection are missing, lawmakers that the obligation to fill and repair. In other words, the legislator should knowledge and information acquisition based on new laws, new regulations, new protection.48

(3) the protection of basic rights and obligations of the relationship between institutional guarantee

The duty of protection about the guarantee of the system and the basic rights of the compatibility, the author thinks that the problem does not exist. This is because with the classical security system theory, and the objective law is not in the basic right to talk about the guarantee of the system, and therefore would not as basic right and duty to protect fundamental rights objective method of argument. Moreover, institutional guarantee is the class to the legislators not negative obligation repeal the core system, the protection of basic rights and obligations of giving lawmakers a positive obligation is different, in the author's opinion, the former represents over forbidden spirit, the latter represents has forbidden spirit, they can complement each other.

Insufficient ban (Unterma ß verbot) concept first put forward by Canaris, civil law scholars, as excessive ban (Ü Berma ß verbot) the opposite concepts. That is not excessive intervention of the freedom of the people, the state for the protection of the freedom of the people, nor less than the required standards. Excessive prohibition is starting from the defensive function of fundamental rights, aims to delineate the maximum range for the national behavior, on the contrary, the principle of prohibiting shortage is to protect the obligation functions focus on fundamental rights, protection measures for the country to delineate the lowest bottom line.49The Federal Constitutional Court of Germany in the second abortion decision, will not prohibit set to review whether the implementation of the duty of protection benchmark, it points out, type and scope of protection to the individual situation should be how to identify, is the task of legislators. The constitution only the protection set as the target, as it should be on how to form the individual situation, is not defined. However, legislators should take into account the principle of prohibiting deficiency. Within this range, the legislators are controlled by the constitutional court.50

(three) the family planning and reproductive rights obligations

The traditional marriage for the purpose of fertility, but with the growth of citizenship rights,51Now that the citizens have the right of bearing, also has not the right to birth.52Therefore, the modern marriage gradually and reproductive function of phase separation, such as the Ding Ke family, surrogacy, asexual reproduction and so on. However, the constitution of our country forty-ninth paragraph second couples have family planning obligations. According to the fundamental duties of citizens is the principle to the basic right limit,53The couple's family planning obligations should be a limit to the spouse birth right.54

The main obligation of planned parenthood is husband and wife, and the provisions "population and family planning law" is different, the seventeenth article of the law, citizens have the right of bearing, also have the obligation of practicing family planning according to law. For the difference between the two, the author thinks that, from the quantity control of population and family planning obligations purposes, "population and family planning law" regulation is more reasonable. Because whether it is legitimate or illegitimate, should be the implementation of family planning, or, if not the marriage will not exempt from the obligation of planned parenthood. As for the body constitution, family planning obligations defined as husband and wife, also is the performance of procedures in men and women, I think, which remains with the constitutional definition of marriage related. According to the aforementioned, the marriage is the legal significance of the marriage instead of de facto marriage, and since the constitution will family planning obligations under the institution of marriage, nature is to marriage couples obligations. Therefore, subject and the legal constitution of family planning on the obligation of family planning obligations does not exist contradictions, but different focuses.

On the Constitution in family planning obligations of content, from the "population and family planning law" provisions of article eighteenth of view, there are two main reasons: one is the birth time limit. That should be late. Two is to have a limit on the number of. One couple one child; in accordance with the law, rules and regulations of the condition, can request to bear a second child.55Of course, since the family planning obligations are of reproductive rights of citizens, so, this restriction is restricted, otherwise it would constitute a violation of reproductive rights of citizens.

There is a problem worth discussing is the nature of how to understand the reproductive right? The author thinks, the birth right is different from other fundamental rights, it is a kind of collective rights. The basic rights are exercised by citizens, but the collective rights must be exercised jointly by the collective. Fertility is married or unmarried men and women two things, even through a surrogate, also provide eggs or sperm must obtain the consent of the other party. Such as the "population and family planning law" the seventeenth regulation, both husband and wife are the joint responsibility in the implementation of family planning. At this point, the collective right of different fundamental rights enjoyed to legal persons, the latter will have separate legal and corporate citizen, legal person is that as an independent individual, not collective.56

(four) the parents of compulsory education and parental rearing

The fundamental duties of citizens is based on the principle of the basic right limit, the forty-ninth paragraph third the first half of the sentence prescribed parents educate their children who are minors obligations is a restriction on the right of the parents. This is a British scholar John Eekelaar will define the essence of duty right (parental obligations rights) reason.57

The provisions for the basic rights of paternity is the German constitution of Weimar 120th, it provides, the education of their children become physical and mental, and can adapt to the society of adults, as parents of natural rights and the highest duty, national organization should supervise their implementation. But the scholars do not believe that the parental right to freedom, but only a programmatic provision. Until after World War II, paternity is full protection. Article second grundgesetz sixth continuation of the Weimar constitutional spirit, rule, upbringing and education of their children as parents of natural rights, also the highest obligation, the exercise of supervision by the state. Because the basic law article third basic rights has the effectiveness, therefore, scholars generally think, paternity is a kind of freedom, has the function of the right to defense, that parents for the country against its dependency, education of children of any act, can through legal channels to exclude. Secondly, paternity is a personal right, either parent is feasible, parties have equal right. Secondly, parental power is the obligatory rights. Because of parental power is an altruistic rights, the exercise of parental authority not only to parents' interests, and should seek happiness.58In other words, paternity is not the parents of their children's rights, but a kind of service, benefit, protection of children's right to freedom, the best interests of the minor children of parental authority shall be as the most important consideration, and should respect the children's personality right to self determination. Finally, as with other basic rights, paternity has its limits. This is also the basic law article sixth paragraph second the last sentence "connotation of national supervision". If parents abuse their parental authority, or even damage the interests of the child thought so, exercise state can be the guardian or other social organizations to make up or replace the parents of their parental right.

Our constitution has no direct provisions of paternity, but it is worth noting that, China's "marriage law" provisions of article twenty-third, parents have the protection and education of the underage children the rights and obligations of the. This can be seen as stipulated in the ordinary legal paternity. Of course, here the subject of the parental right is not limited to parents, including parents, adoptive parents. At the same time, according to the "general principles of civil law" in article sixteenth, should also include the guardians of minors.59In addition, "general principles of civil law" provisions of article eighteenth, guardian shall perform their duties of guardianship, protection has been guardian of the person, property and other lawful rights and interests, except for the interests of the ward, shall not handle the property of his ward....... The guardian does not fulfil his duties as guardian or infringes upon the legitimate rights and interests, should bear the responsibility. "The first paragraph of article twelfth of juvenile protection law" also stipulates, parents or other guardians do not fulfil his duty of guardianship or infringes upon the lawful rights and interests of the minors, should bear the liability according to law. This can be seen as the parental restrictions.

Of course, the Constitution does not expressly provided, does not mean that the Constitution does not protect. The Constitution also do not enumerate the life right, health right, but it does not mean that the constitution of our country will not protect the citizen's life and health. In general, for some natural rights, which is prior to the state, people of course right, even though the Constitution does not expressly listed, countries must respect and protect. The Constitution did not list these rights, may be the framers thought these rights is behoove, not self-evident, conversely, if not that the Constitution explicitly enumerated to protect, should be the fundamental rights of the constitution protection of the change as a basic right, constitutional and so on, these natural rights, the Constitution does not expressly listed respect may better reflect these rights than explicitly enumerating.60According to the aforementioned, paternity is a natural right, is generated between parents and children relationship based on, from the protection of human dignity and contact angle, the third paragraph of the forty-ninth, should not be difficult to introduce the constitution of our country should protect paternity.

Parental power is parents upbringing and education of their children's rights. Support is the development of the health care, master its spirit and personality; education is formed to cultivate children's ability on the relationship between play care.61The right to education of Han parents built family education and school education in two major areas, family education, parents have full rights to education, according to its world outlook, values and beliefs, to decide the mode and content of family education; while in school education, parent education right and education right in right two categories for education. Education selection refers to the right of parents to select the most appropriate education for children's rights, including: (1) school choice, the choice in public, the rights of private schools; (2) the right to choose the type of school, school education refers to the end of a stage in children by parents to choose the school, type of school and education rights, also known as the option for the education career. (3) the option in family education, refers to the choice of home schooling instead of school education, according to the need of education by the parents of their children's rights. Educational participation refers to the right of parents participation and education affairs, divided into individual participation right to participation and collective. The former refers to the parents of children learning the right maintenance on the ground, put forward suggestions on their children's school education way and content, and require schools to provide information rights, including the content of school education, the right of right, procedural right, right to information requests. The latter includes parents the right to organize, school education participation right, right to participate in the administration of education.62

Note that, although paternity is the main body of the parents, but with the reproductive rights is different, parental power is not a collective right, i.e. paternity not by both parents to exercise. Parents not only can exercise their respective parental rights, even in the form of conflict situations, such as a party to the other party of parental authority without consent, also did not cause the other party's paternity cannot exercise situation. Because of parental power is an altruistic rights, the most important thing is to meet the interests of the child, if the violation of the interests of the child, parental rights will be limited. Therefore, paternity is not to both parents agree in case the exercise, the key is to see which side of the exercise of parental power is more beneficial to the child's personality and self realization. As China's "marriage law" thirty-sixth paragraph third, after the divorce, breast-feeding period in children, breast-feeding mothers with the principle of dependency. After breast-feeding their children, by raising questions such as the two sides dispute can not reach an agreement, the people's court according to the specific situation of the rights and interests of the child.

(five) of adult children to support and assist obligation

   Article forty-ninth paragraph third second half sentence provisions of adult children to support parents help obligation, can be said to be a limit to the adult children of property rights, freedom of the person. Support support focuses on economic, support focuses on life care.63At the same time, from the voluntary main restricted to adult children, the attitude of adult children and underage children is different. For adult children, the more stressed the obligation, but for minor children, more emphasis on the rights of the constitution.

(six) the freedom of marriage

The freedom of marriage, also known as marital autonomy.64According to the theory, freedom of marriage, including the freedom to marry and divorce.65However, the author thinks, the freedom of marriage shall also include the reproductive freedom (or Sheng Yuquan). Although the modern marriage is not the sole purpose of family, but the family as a marriage "crystal", but also the link between marriage and family.

As for the freedom of marriage are constitutional basic rights, the author does not agree with, the reason is that: as the first generation of human liberty, is prior to the state, but the marriage itself is the construction of national legal result. Therefore, will appear on the restrictions on the freedom of marriage in the marriage itself.66Such as "marriage law" article tenth, invalid marriage is under any of the following circumstances: (a), bigamy; (two) a prohibition of marriage between relatives; (three) marriage with medical illness that should not be married, has not been cured after marriage; (four) under the legal age. It is said that "the situation does not constitute a marriage" or "the situation is to limit the freedom of marriage". Another example of "marriage law" thirty-second paragraph third, any of the following circumstances, the mediation fails, divorce shall be granted if: (a) bigamy or a person who has a spouse living together with others; (two) the implementation of family violence or maltreatment, abandonment of family members; (three) there is gambling, drug addiction and incorrigible bad habits; (four) separation for no love two years; (five) other circumstances lead to the breakdown of marriage. What is the freedom of divorce restrictions or the situation can divorce. So we can say, no law, the freedom of marriage will be impossible.67But freedom does not depend on the law exists (or, even though no laws, freedom can also achieve). So, I prefer to the freedom of marriage as a legal right,68Instead of the basic rights of constitution. So, in the fourth paragraph of the forty-ninth freedom of marriage is not the requested State shall not infringe upon the citizens right to defense, but more is made of legislators from institutional guarantee angle "core shall be abolished, the edge can be restricted" requirements.

System security three, marriage, family

Schmidt in the proposed system security theory, although the distinction between public law and private law system system, but the key is still in the public law system, such as local autonomy of civil servant system, occupation, religious public associations, public university autonomous etc.. For the private law system, such as property rights, marriage and family system is less emphasized. Therefore, the real from the security system of marriage and family is the German Federal Constitutional court.

The Federal Constitutional Court think, special protection act sixth provisions of the first paragraph of marriage and family by the state order, the principle of the system, we should first determine the order of life from outside the law. Marriage and family are from the ancient came, and its core is not changed and the formation of. Therefore, the first basic sixth institutional guarantee of substance, and always custom is consistent. On the basic law, marriage is a male with female, life in the community and in principle can not be forced to unlock, the family is the parents and children in the community, parents are upbringing and education to adult children's rights and obligations. The core of this system, the method of overall feelings and law, is not to be violated.69Secondly, the Federal Constitutional Court also believe that, in the first paragraph of the principles and norms of basic sixth is determined by the value of marriage and the family, it will be regarded as the human community embryonic cells, and special protection under the national order under. Therefore, the security is not only the protection of marriage and family are not subject to national public power abuse, at the same time, it also provides the state power should take appropriate measures to actively work contributed to the marriage and family.70

(a) marriage, the family as an institution

The system, according to the "dictionary" interpretation, mainly has two meanings: one is for members to abide by, according to certain procedures rules or guidelines for action, such as working system, learning system; two is the system of political, economic, cultural and other aspects of formed under certain historical conditions, such as the socialist system.71The former can be called the small range of system, which can be called the great range system. The author thinks, the marriage, the family system is mainly the latter sense, at the same time, whether it is a small range of the system is also a wide range of system, their common characteristic is composed of "a group of standard". This understanding has been contemporary philosophy and legal theory support.

American philosopher Searl distinguishes the cruel facts and institutional facts "in the construction of social reality" in a book. Ruthless fact is not dependent on any human system exists, institutional fact exists only in the human system. For example, between earth and the sun there is a certain distance that is not dependent on any system exists. But, what is the system? Searl then distinguish the constitutive rules and regulation rules, regulating the activities of rules in the regulation, such as the vehicle on the right side of the road running is the regulatory rules, but driving activities before the rules are already exist. Constitutional rule is to create a certain activities, such as chess rules are not control a first in the activity, in contrast, is the rules of chess creates the possibility of chess activities. If you don't follow the rules, you are not in the game of chess. Therefore, institutional fact only exists in the system of rules in the rule, the system creates the possibility of this kind of fact.72System of law of contemporary reference to Searl's theory, points out, the legal system means that some by creating rules, complete the adjustment rules and Termination Rules of legal concept.73

Marriage and family is as a system, is that they must be dependent on the existence of certain rules. It is difficult to imagine, a man and a woman together can be called marriage or some old people and children together can be called family. As Searl said, institutional facts do not exist can, the key is to give the people a meaning or function. For example, money itself is just a piece of paper, it makes money because people give it the trading function, Searl gives people called the collective intentionality. But the collective intentionality can make the cruel facts into institutional facts, which can make X as in C Y, this is to create an institutional fact constitutive rules.74As mentioned above, is highly dependent on the law of marriage, if not the law, we will not be able to determine whether the relationship between a man and a woman of marriage. The traditional family is built on the basis of marriage, nature is also dependent on the law. The modern family values while containing outside the marriage relationship and the adoptive relationship, and that this kind of kinship and the adoptive relationship must rely on the law.

(two) the core system of marriage, family

The system core is the essence of system or foundation of the system depends on, if according to Searl's words, is the constitutional rule, if you change the rules in the C, X will not be Y. Of note, security system theory requires maintenance system present situation, this situation may have existed in the constitution before. However, current situation of the system the past may with the spirit of the constitutional conflict, such as China's traditional family system with the core of the patriarchal, male first has been the impact of gender equality and gradually abandoned. Therefore, emphasis on tradition, although has certain stability, stable social life to the existing state of respect, but not as hinder the system development reason. So, when the function of the system with the lapse of time and change, social values have gradually changed, scrupulously not is the institutional guarantee for the purpose of.75

According to the "marriage law" the first paragraph second, the core system of marriage is the freedom of marriage, monogamy, equality between men and women. As the freedom of marriage, here the "monogamy" is different from China's ancient "monogamy concubine system", which is not only the law can have only one spouse (bigamy shall be prohibited), but also can in fact have a spouse (ban is a spouse together with others). As for the equality of the sexes, the German Federal Constitutional Court also pointed out, the content of the system the article sixth of the basic law, the decision from the special value of the law, showing important factors further, this is mainly to consider the second paragraph third (Basic Law of equality between men and women) and third (gender equality). The basic law makers, the starting point is the sixth and the third provisions consistent.76From this point of view, the article forty-eighth should also be incorporated into the marriage system of the. Of course, from the content of the first paragraph of this article -- the people's Republic of China women in all aspects of political, economic, cultural, social and family life, enjoy equal rights with men in marriage, equality of men and women in the system mainly refers to the men and women in the family life of equality.

Although some scholars will be the core family system are summarized as: composition or not family rights, right to family life, maintain harmonious family survival rights, to maintain the family relationship of rights.77However, the author thinks, this did not seize the family system core, especially not in conformity with the present situation of our country and family system. From the provisions of our constitution about the institution of the family, the author thinks, the core family system is the principle of special protection of vulnerable members of the family. The constitution of our country's special protection for mothers, children, the elderly, women, and impose obligations to parents and adult children, outside notting have is: mother, father is weak relative to children compared to adolescents is weak, the elderly compared to young people are vulnerable, women for men is vulnerable, minor children to parents is weak, while parents compared with adult children is weak. So, in order to protect vulnerable groups, can be set for the duty of the state; at the same time, in order to protect vulnerable groups, can be applied more committed to a strong group of relative.

(three) the effect of institutional support for marriage, family

   According to the Schmidt's theory, the effect of institutional support for marriage, family is: legislators can limit the non core parts of the system, but not abolish the core part of system, namely "core shall be repealed, edge can limit". Schmidt's theory is mainly to produce lawmakers Negative Obligation of omission, and cannot derive legislation as a duty.78However, if the duty of protection security system contains a basic right, which requires active as a legislator. Therefore, our country constitution on marriage, family system there are two main security effect: one is starting from the institutional guarantee, export the legislators may abolish the core system not as obligation. So, what is to abolish the system of core? As scholar Ansch ü TZ, restriction and abolition is difficult to distinguish. In this regard, the author borrows the basic rights of the nature of the content violates the theory to explain: first, abolish and limitations to what extent, lawmakers limits must be free or other interests of the lowest content security, at least not affect every system of human dignity, otherwise will be abolished. Think like the German Federal Constitutional Court's constitutional in the case of life imprisonment, was sentenced to life imprisonment prisoners still re socialization claim based on, and enjoy the right of pardon in certain situations, so far, their personal freedom "still have residual".79Secondly, according to the principle of proportion and excessive ban, lawmakers restrictions shall be justified by the benefits. That is as long as the great interest to limit a secondary interest, nature of the content of secondary interest is relatively narrow, the essence is the interests of the secondary inviolate. For example, the Federal Constitutional Court in occupation prohibition that constitutional cases, only for the protection of particularly important public welfare, situation urgently necessary and system, can be completely banned from entering an occupation.80The other one is starting from the state's duty to protect fundamental rights, will derive the legislators to protect legislation as a duty.81

Four, the conclusion

Through the analysis of the paper, so our article forty-ninth of the constitution is the quite complex, but also is the inner link between the provisions of the constitution, the construction of marriage family system. The connotation of this system as shown below:

 

 

 

 

 

 

 

 

 

 

 

            The old

 

                                        The freedom of marriage

Parents     (couple)         Family planning obligations            Marriage

                          The equality of men and women

 

 

Support and assist obligation  The children   Raising education obligations

 

Adult children    Minor children

 

          Children    Juvenile

 

 

 

 

 

Family

 

Note: the box indicates the national protection duty.

 

  Marriage, family system around the core system of their own, forming a different specification: (1) the relationship between husband and wife -- the freedom of marriage, family planning and reproductive rights, obligations of equality of men and women; (2) the relationship between parents and children -- the parents support of minor children education obligations and paternity, adult children to support their parents help duty with adult children of property rights, freedom of the person; (3) the family members -- mother, children, the elderly, the women special protection.

   Although in recent years, surrogacy, gay, unmarried fertility problems bring challenges to the marriage, family system, but this does not mean that the traditional marriage, family system was disintegrated, on the contrary, the system security theory, lawmakers as long as adhere to the core of the system, for these new challenges, legislators have the right to to shape or regulated by law.