On Constitutional Protection of equality right

1. Abstract To:Equality is a basic human right, right stipulated in the constitution. Equal rights arise in the age of enlightenment, to get great development after the second world war. Origin of the theory of equal rights of universality in human rights, its essence is to oppose discrimination, is the foundation of the state power of justification. The state of the distinction to have reasonable cause to citizens, and the scrutinyStandard. The right of equality is not only the right in theory, but also has great value in practice. Equal rights of citizens, should be constitutional law guarantee citizens' equal right -- "anti discrimination law", to guarantee citizen constitutional right of equality.

Key word.Equal right; constitution; human rights; anti discrimination

Equality is a very simple concept. In modern times, equality has been inspiring people of the revolutionary struggle and strive for freedom slogans, French thinker. Bonner Lottie even shouted out "and to" equal slogan. The Constitution establishes the principle of equality in the rule of law, equality and become one of the characteristics of modern law, if the law can not do at least the equality in form, it is definitely not just laws. The principle of equality was enshrined in the constitution has been a long time, why still need to come up for discussion? Because the equality is not only a kind of value, but also a constitutional right, more importantly, equal right is of great practical significance in today's Chinese. Along with the progress of the society, various maintenance equal civil rights activities have increased trends, also appeared related to the equal right of litigation. Therefore, the constitutional equality rights actually what is the connotation, constitution and how to protect the right of equality, worthy of our careful consideration.

The thought origin, the value of equality

The value of equality has a long source of thought, the equal thought existed in the ancient Greek philosophy. Aristotle illustrates the idea of equality in the "politics". He proposed, politics of goodness is justice, in accordance with the general understanding of the concept of equality, justice is something. He classified the justice into the general justice and individual justice, of which the individual justice consists of distributive justice and corrective justice (average), correction (average) justice is the reflection of the absolute equality relations between people. He is from a theory of justice, that the law is an embodiment of justice. Ancient Rome philosopher Cicero further will be equal and natural law together, he thought, man is created by God, before God is equal, the human rights also should be equally protected, the law should be for all people are fair, equal, otherwise it is illegal to natural law.

In the middle ages, the concept of equality is also added many new contents. Christian "Bible" propaganda everyone in front of God's equal thought. "The New Testament" several times in the show, from the view of human nature, everyone is a child of God, are equal in the sight of god. However, the medieval scholastic philosopher SaintThomas Aquinadze think, according to the arrangement of God, the natural order of inequality is a common phenomenon in society, is not equal, so the dominance and submission is natural.

After the rise of modern enlightenment, happened to turn the world upside down change the western world understanding of equal value. In the middle ages, inequality with the western world, personal attachment relationship seriously, the identity of the person become a hierarchy of criteria, such as France's "three meetings" is in accordance with the level of identity and held. The rise of enlightenment in the first concept impact of inequality and to obey the rule of. Rock in the "government" in the "everyone is equal before the law" the principle of the rule of law, think that everyone is equal to enjoy the rights prescribed by law, equality and to fulfil the obligations prescribed by law, is not because of the special conditions and have access to. The British philosopher Harrington proposed two equal and property of political balance thought of combining, the Republic of China to become the people's Republic of China on the basis of equality. He believes that if the two equality can be achieved, the state will eliminate the citizen in political and economic disputes, will bring the unity of the people and the country's long period of stability. Political conservatives Edmund Burke think, public society brings the benefits of social rights, which is equal to but not the same, individual rights in state affairs is not the simple original right of equality, but rather through the contract agreement, a contract is equal but not necessarily equal agreement results.

The thought of equality image British thinkers in North America and France, and through the North American and French Revolution image two revolutions. American opened the founders Thomas Jefferson points out, "all men are created equal, that they are from their 'creator' there are endowed with certain unalienable rights, including the right to life, liberty and the pursuit of happiness right there." As the "Declaration of independence" of the drafting of North America, Jefferson made these statements written into the "Declaration of independence". Jefferson is a human rights campaigner, he will value and equality of human rights closer together, and will equal the value written into the revolutionary constitutional document, is a development of the concept of equality. Make a special study of the French thinker Rousseau of human equality, published "on the origin and basis of" inequity. He thinks, the emergence of private property, the ownership of the inequality, private ownership is the root cause of inequity, but private ownership is inevitable, only limit excessive inequality. Rousseau points out, human society is the most basic and the highest ethical standards is freedom and equality, and to realize the freedom, equality is the premise, the equality to be ascertained by law, law should people make no exception.

From eighteen to nineteenth Century the British utilitarian jurist Bentham think, in does not violate the principle of security, the legislator should try to promote equality, everyone is equal before the law. The first equality is ethical and legal under the equal; second kinds of equality is the economy and property of equality. Bentham think, second kinds of equality in fact does not exist, because the average property would be a violation of safety, and the safety is the first, equality is a second bit, conflict between the two, the latter should be subordinated to the former.

The twentieth Century philosopher Rawls put forward the two principles of justice in "a theory of justice". The first principles of justice is the free principle of equality, the principle requires that everyone has equal rights; the second principles of justice is the combination of opportunity fairness, the principle of equality and difference, the principle requires social, economic inequality, only in the position and the office is open to everyone and this inequality is good for all of us (especially favorable to the most disadvantaged in society's people) with justice case. Rawls thinks, in between the two, the first principle is prior to the second principles. Rawls's thought has reflected the tendency of liberalism with equality.

In a word, the values of equality has been deeply penetrated into the social life of our and our laws. The word has become a principle of equality, a creed, a religion, a religion.[1]Observe the development track from equal values, we can find a wonderful process. In ancient society, thinkers in comparative perspective to explain the simple concept of equality, the equality and the natural link. In the middle ages, the concept of equality and religious ideas. After the rise of Modern Enlightenment thinkers, more interested in the discussion of equal value, they will be equal and law together, proposed the "law the principle of equality before the law", is a tremendous progress in legal thought. After the middle of the nineteenth Century, people no longer seemed so keen to talk about the value of equality, and the legal thought have been on the rise, the thought of natural law no longer dominant, historical jurisprudence, jurisprudence, sociological jurisprudence have boarded the stage theory. However, after the Second World War, with the reflection of the fascist atrocities, and pay more attention to social fairness, welfare state began to rise, equal value again aroused people's attention, which prompted Rawls debut with equal propensity of liberalism. This is the origin of equal value in Western thought in the world, and to see the rise of the contemporary China equal values of the background we will.

Two theoretical basis, right of equality

Equality means there is no difference in interest or no interest, but not absolute equality, but prohibited according to usually think it is not reasonable reason to discriminate.[II]From the legal perspective, which enjoy equal legal rights and assume there is no difference between the legal obligation. Not absolute equality, its essence lies in the equal protection by the law prohibits discrimination against people, -- namely the unreasonable difference in law treat. The law here includes all has the universal validity of normative documents, including laws, administrative regulations, rules and regulations, judicial interpretation, but also includes other normative documents. The provisions of the constitution to the fundamental law of the state in the form of citizens' right to equality, the equality is not only a kind of value theory, but also is a kind of basic rights. Equal rights as one of the basic rights of citizens, the scope of the subject is extensive, also applies to all areas of the law.

Origin of the theory of equal rights of universality in human rights. Throughout the history of human understanding of the concept of equality, human early and did not connect equality and rights, at least that equality is a natural attributes, connect the equality and natural law. Until the age of Enlightenment thinkers, hold high the banner of freedom and human rights, the equality value also to pay attention to it, "liberty, equality, fraternity" has become the main theme of the times of revolution. Equality and freedom, human rights, become the core value of modern view. Human rights are universal, equality is the fundamental requirement for the universality of human rights. Embodiment of "all men are created equal" is the slogan of the universality of human rights and equal values. During the Second World War not only destroyed the human rights of the victims, but also seriously damage the equality value equal rights and people of all countries. The idea of universal rights in international human rights law which began in the reflection of the Second World War, established in December 10, 1948 fourth session of the UN General Assembly adopted the "Universal Declaration of human rights", and further reflected in the two international human rights conventions and other international documents of human rights.

The universality of human rights focus on care for each individual human rights, human body essential universality is the subject of human rights equality. "The Universal Declaration of human rights" is to promote the universal human rights spirit, the first first declared in dignity and rights of equality, regulations, "man is born free, equal in dignity and rights. They are endowed with reason and conscience, and in a spirit of brotherhood." The provisions of article second of the universal rights and freedoms: "everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status of any difference." Article seventh the direct provision of the "everyone is equal before the law" and "equal protection" of the spirit: "everyone is equal before the law, equal protection of the law and are entitled, without any discrimination. All are entitled to equal protection, from any act in violation of the declaration of any act of discrimination and incitement to such discrimination."

Universal equality and human rights are two sides of a coin. The universal recognition of human rights, we must guarantee the right of equality; recognize and protect the right of equality, but also guarantee the universal human rights. Therefore, we can be in the "Universal Declaration of human rights", "International Covenant on Civil and political rights" and "economic, social and cultural rights international convention" see "all" or "any person" word, this is actually on the universal human rights and equal right to recognition and protection.

The connotation of the three, the constitutional right of equality

(a) the constitutional status of the rights equality

The constitutional status of the rights equality can be traced back to the era of the bourgeois revolution. Before the formal written constitution, constitutional documents USA and French were declared equal right position. The North American "Declaration of independence" points out, "we hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable rights, including the right to life, liberty and the pursuit of happiness." Equal rights and the right to life, liberty and the pursuit of happiness rights, become people to establish the basis of legitimacy, the government therefore, "in order to secure these rights, governments are instituted among men." France's "Declaration of human rights" first announced, "on the right side, men are born and remain free and equal. Social distinctions only displayed in public use." The provisions of article sixth, "before the law, all citizens are equal, so they can have equal according to their ability to serve as all official posts, public positions and functions, in addition to virtue and ability differences may have other differences." The French "Declaration of human rights" in addition to the announcement "born equal", but also for the first time in constitutional documents in the form of "everyone is equal before the law" principle, has a profound impact on the world, since the principle of constitution, constitutional follow the French "Declaration of human rights", provides for equal rights citizens of the constitution. In addition, the French "Declaration of human rights" also stipulates the equality is not absolute, in order to public use, virtue and to show the difference.

1945 "Federal German Basic Law" provisions of the right of equality is typical of modern constitutional right of equality norms. The third is fully provides for equal constitutional right of content: "one, everyone is equal before the law. Two, men and women have equal rights, countries should promote the practical implementation of gender equality, and removed the existing discrimination. Three, no person shall be discriminated against or privileges because of gender, origin, race, language, nationality, origin, faith, religious or political views. No person shall be discriminated against because of their disability." The provisions not only enumerates the right of equality, principle of equality between men and women is also stressed, more important is, the right to substantive equality is discrimination against or enjoy privileges.

In the long period of China's feudal society, the inequality is institutionalized. In the process of modernization, China's legislators to accept the values of equality, so that "before the law (or law) equality" as a principle of the constitution. The period of the Republic of China in 1946 "constitution of the Republic of China" the seventh regulation, "citizens of the Republic of China, irrespective of sex, religion, race, class, political parties, shall be equal before the law." This proves that the equality of human society as the common value is universal, and the absorption of the constitution of our country. China's 1954 "people's Republic of China Constitution" stipulates that the eighty-fifth, "citizens of the people's Republic of China shall be equal before the law." The current "provisions of the second paragraph of article thirty-third of constitution", "citizens of the people's Republic of China are equal before the law." This shows, equal right as a basic right of citizens, characteristics, and has universal human rights, constitutional right of equality dominates every law, see the law applicable to the principle of equality, can in many branch laws and therefore, constitutional right of equality has a very high position in the constitution.

In the constitutional theory and practice, the equality is considered the state power confirmed and the premise and foundation of legal protection of individual rights and legitimacy of.[3]In the society, even if people want to get everyone is equal, but in fact, it is not the equal phenomenon. It is impossible to rely on hand power to maintain the equality of status, the right of equality, the Constitution gives citizens so, the government must rely on this to maintain equal rights of citizens, which opposes discrimination and privilege. Equal rights as well as the constitutional rights of citizens, but also the foundation of legitimacy of state power.

(two) the equal rights in constitutional law

Equal right is a basic right of independent. The reason that the equal right is a basic right of independent, equal right is because does not belong to a class of constitutional rights, and is independent of the characteristics of. However, from another perspective, "an 'extra' right away right of equality is not a guarantee of private rights, but rights."[4]Equal right and other rights are not compared to other fundamental rights of content, but the subject of rights is state based on classification of reasonable standard and reason, its focus is between people in the enjoyment of rights whether there are differences and what kind of difference. In form, the rights are divided into two categories: liberty and equality. They correspond to two different clause in the Fourteenth Amendment to the constitution of the America: due process and equal protection, the government banned "without due process of law, namely deprive any person of life, liberty and property", "which prohibits the government refused to provide equal protection of the laws of any person."[⑤]Freedom is the focus of the content of basic rights, equal right is concerned with the rights and obligations of the relationship between individuals, that is the relation between person and person, no state unreasonable discrimination and discrimination.

(three) equal rights legislation guarantee standard

Effect of right to equality with the constraint of national power, including both at the legislative power of the state, namely the restriction of legislative in the legislation is the citizen enjoys the rights and obligations of unreasonable differential treatment and discrimination;[6]Also at the national administrative power, which limits the administrative organ in the formulation of administrative regulations and the specific administrative act of citizen of unreasonable differential treatment or discrimination, the enforcement of the equal; also control the state judicial power, which is the legal equality. After the two equal to a reasonable legislation as the premise, if there is no guarantee of equal rights laws, there is no law enforcement and judicial equality equality. How to establish equal rights legislation security standard, is an important problem that the constitutional right of equality. In other words, the legislative protection of the right of equality does not exclude the reasonable difference due to the difference in the nature of citizen and society and for the protection of substantive equality and take the treatment, however, this difference must meet certain standards.

The difference between the 1 according to the physiological differences between people and the treatment. Such as access to material help right, that is protection against old age, illness or incapacity of the rights of citizens; special safeguard for the disabled is relative to a normal physiological differences in the civil law; to the minor differences in crime and punishment on the treatment is different according to the physiological and psychological characteristics of juvenile and the treatment.

2 according to the different ethnic and gender by treatment. Such as the national special policy for ethnic minorities, such as preferential policies and transition economy of regional ethnic autonomy, on the employment of concessions, America after the rise of minority to implement preferential policies is also true in the civil rights act of twentieth Century mid-term; countries on women's special policy is correct for a long time to form historical injustice treatment of women.

The difference between the 3 according to the country's political need for treatment. As provided in the constitution of adult citizens enjoy the right to vote and to be elected; Deputy to the National People's Congress (foreign regulations provides members of Congress) identity security rights (such as speech exemption, non approved by the National People's Congress shall not be liable to arrest the right rules); over 45 years of age citizens have the right to be elected president. These are different in order to perform specific duties and the provisions of national treatment.

The difference between the 4 according to the specific needs of the occupation and treat. If the law provides for the special qualification judges, prosecutors, lawyers, doctors, teachers, civil servants, the restrictions on the cultural level, professional qualifications, this is to use these special occupation professional requirement.

The difference between the 5 citizens according to economic conditions and treatment, this is mainly targeted at vulnerable groups of family economic difficulties and policies, such as the economic difficulties of the citizens have the right to obtain legal aid; in China, migrant workers as vulnerable groups in the market economy, rights; etc..

(four) for violations of equal rights standard of review

Legislation can be based on the actual situation and reason to make a distinction between the citizens treat, and achieve the substantial equality. Then, the difference between the circumstances under which the treatment is reasonable, the difference between what circumstances treatment are unreasonable, it will need to be reviewed, to determine the legislative protection of the right of equality standards. China currently has no for the legislation of our country standard of review, however, judicial review system American developed legal protection of equal rights of review standards, these standards can be used as a measure of whether the law legislation rational distinction to citizen standard.

1 absolute (Yan Ge) standard of review. This refers to the legislation or acts of state not to race, religion, family background or other identity on the distinction, restrict or deprive citizens basic rights. Unless there is a valid reason to achieve the purpose of essential equality, can discriminate, but must carry on the strict examination standard.

2 moderate (secondary) standard of review. This refers to the legislation can be reasonably classified differently according to the age, gender, economic status, to correct the inequality. This is mainly to take special treatment measures to these special groups. This review will not adopt strict standards, can be moderately.

3 relative (Kuan Song) standard of review. It is mainly applied to review the economic classification of legislation. For example, the relief measures for the unemployed, safeguard measures to life in a minimum security level, etc.. This kind of review for easy comparison, is a relatively review.[7]

China has no specific standard of review. China's constitution stipulates that the thirty-third, "citizens of the people's Republic of China are equal before the law." The thirty-fourth nation, race, sex, occupation, family background, religious belief, education, property status, or length of residence cited, is only the rules for the right to vote and to be elected. However, in theory, can take into consideration the above theory to classify, to determine compliance with Chinese actual standard of review.

Four, the anti discrimination and equal rights in practice

The right of equality is not only a theoretical problem, but also a practice problem. Substantial safeguard of the right to equality is against discrimination, its security measures than by giving special group rational distinction in order to ensure the substantive equality, an important means to fight against discrimination and protection of the right of equality.

Discrimination is based on the equal right is a basic right in the Constitution and the international human rights convention this concept. Therefore, whether the laws and regulations, or autonomy of civil law principle must be equality constraint. Equality value in practice is embodied in the practice of anti discrimination. Although China has made great progress in the respect and protection of human rights, but in real life, discrimination still exists in a wide range, such as the discrimination of different degrees in the employment, education, residence and other fields. The discrimination performance for the citizens of the age, gender, residence, height, appearance, health and other non rational factors become the important conditions for citizens to discriminate the. So, the equal right to become citizens protect their specific rights, an important right against unreasonable infringement. Moreover, China has more and more citizens in the constitutional right of equality as a weapon, launched the equal rights lawsuit judicial procedure. For example, some scholars believe that occurred in Xinjin County, Sichuan Province, involving the transfer of land compensation fee equal rights lawsuit is China's earliest constitutional equal rights cases.[8]Jiang Taosu and the people's Bank of China Chengdu Branch for recording clerk is discrimination case directly at the problem of employment discrimination, Zhaolu civil servants plaintiff, defendant recruitment limitation height, violated the constitutional provisions on "citizens of the people's Republic of China are equal before the law", violated its qualification as a state organ office.[9]Although the plaintiffs dismissed, but still has practical significance in the maintenance of the right of equality in China. In addition, took place in Anhui, Wuhu is known as "the first HBV discrimination case" has also become the equal rights of the constitution litigation mark case. Because the infection of hepatitis B lost Civil Service Recruitment Qualifications Anhui young Zhang to the Wuhu Municipal Personnel Bureau to court, in April 2, 2004, Wuhu Xinwu District People's court verdict, the defendant Wuhu City Personnel Bureau undertook the specific administrative act to cancel the plaintiff Zhang Xianzhu into the assessment procedure qualification in Anhui province in 2003 the national civil servant recruitment and selection process the lack of evidence, the main. In accordance with the law, the administrative act shall be revoked, the court decided that the defendant Wuhu City Personnel Bureau to bear the litigation costs 100 yuan. But the court also rejected the plaintiff requests are hired to corresponding positions and other litigation request.[⑩]The three typical cases are related with gender equality and equal employment two on the equal rights of problem, its essence is to oppose the discrimination against the citizens to non rational factors. Regardless of whether the plaintiff wins, has practical significance, to promote the development of China's constitution and civil equality right implementation.

Our constitutional rights empty phenomenon is real, right of equality is one of the important a. Because of the fact that there are rights empty phenomenon, every time the equal right of action is to cause the attention of people. Only in the practice of equality right is more substantial significance for the citizens, the right of equality is not only a theory on the right, it is a practice of the rights.

However, right of equality in the constitution is rather abstract and principle. In China, the lack of judicial review mechanism, to really be equal right, should also establish a special "anti discrimination law", to protect citizen's right to equality. "Anti discrimination law" should be the constitutional law to guarantee citizens' equal rights, must provide specific anti discrimination standard of review and review mechanism, realization of constitution in order to protect the equal rights of citizens.

Five, the conclusion

Equality is a basic human right, but also a constitutional right. After the rise of enlightenment, especially after the Second World War, the values of equality has been deeply penetrated into our social life and law. Origin of the theory of equal rights of universality in human rights, its essence is to oppose discrimination, is the foundation of the state power of justification. Should allow countries according to the practical need of society, and the reasonable reason adoption of a certain standard of citizens differently, however, this distinction must apply some of the review standards of review. In Chinese social historical period specific, right of equality has great practical value, in recent years the equal right of suit and promote China's development of constitution and the attention to the right of equality. Should also be constitutional law safeguard citizen equality -- "anti discrimination law", to guarantee citizen constitutional right of equality.