An overview of China's constitutional protection of equality right

Name: Xia Wenqiang   Number: 2009429

Abstract: the right to equality is an old and new topic, it is the progress of human society civilization outcome and symbol. As a fundamental right of citizens in the constitution of our country, the academic research on it has never ceased. This paper from the emergence and development of the constitutional right of equality theory, introduces the current research situation of it, in the interpretation of the basic content but also on the hot problems in the modern study: the prohibition of discrimination and allow reasonable difference of content; finally, will focus on the constitutional protection of citizens' right to equality, puts forward some opinions their.

Key word.The constitutional right of equality; equality before the law; reasonable difference; constitutional protection of equality right

A,The emergence and development of the constitutional right of equality

The basic rights in the constitution is confirmed by the crystallization of human social development and legal value rising, it is constantly evolving. People have thought origin far-reaching for liberty. As a pioneer in exploring the human rights of freedom and equality, the ancient Rome natural jurist Cicero proposed the idea of equality in the universal reason under the name between people in their early, although the spirit of equality and personality equality is not only the direct political significance at that time, but it was many western scholars as the initial formation of the equality and human rights concept. In eighteenth Century 17, the bourgeois revolution, some enlightenment thinkers, such as Rock of Britain and France's Rousseau, proposed the "everyone is equal before the law" proposition. With the bourgeois revolution and the deepening of the victory of the world gradually, the bourgeoisie have legal documents confirm that the right of equality. As of 1776 American "Declaration of independence" declared: "all men are created equal"; in 1789 the French "Declaration of human rights" confirmed: "on the aspect of the rights, men are born and remain equal, only in the public use social distinctions may be founded." With the bourgeois revolution spread all over the world, many countries in the Constitution establishes the principle of equality before the law. The Japanese Constitution stipulated: "all people are equal under the law, not because of their race, religion, gender, social status or family status in political, economic or social discrimination."[1]China is in the "54" the eighty-fifth constitution stipulates: "citizens of the people's Republic of China shall be equal before the law." But in "75" and "78" the Constitution Constitution in the provisions the equal right principle, a serious retrogression, contrary to the general rule of human constitution of historical development. China's current constitution "82" summed up the historical experience and lessons, to confirm the equal right principle, the thirty-third paragraph second: "citizens of the people's Republic of China are equal before the law." As can be seen from the above, no matter in the world or in Chinese range, the development history of equal rights with twists and turns. The development of human history can be seen from the constitution, democracy and human rights is the core of constitutional value, while the right of equality is the core of democracy and human rights, can be said that, the right to equality is the core of the core, but also the core content of the fundamental rights of citizens.

The basic contents of two constitutional right of equality

(a) the basic meaning of

China academic understanding of the equal right meaning is each according to his lights.

Tong said that the equal rights of citizens in the legal performance for the next four aspects: (1) all citizens enjoy equal rights under the Constitution and the law. (2) all citizens are equal to fulfill the obligations stipulated by constitution and law. (3) the Constitution and legal practice has protection and penalty equal to all citizens. (4) of any organization or individual shall be beyond the constitutional and legal privileges. In addition, the equal rights of citizens in China, in addition to all citizens are equal before the law, also includes the contents of ethnic equality and equality between men and women.[2]Some scholars believe that: "the so-called equality refers to the equality of citizens enjoy the right, without any discrimination, rights and the principle of state equal protection"[3]Some scholars believe that: the equality of the rich connotation, but its basic meaning there are two: no difference in proportion.[4]Li Zhongxia scholars make a systematic analysis of the connotation of equality, he thinks: the meaning of equal rights are as follows: (1) whether to admit reasonable discrimination? Whether should absolutely implemented without discrimination in law? (2) equality is only citizens in the application of legal equality, or included in the legislation on equality? (3) whether the equality of both rights and principle?[5]The scholars of the answer is in the affirmative. Zhang Qianfan scholars a unique understanding of the concept of "equality" has many different meanings: equality, the three most important meaning is "the equality" and "equal opportunity" real "equality" and "surface equality" and "substantive equality" and "equal procedure".[6]Equality refers to citizens by the Constitution in the legal status of the right to non discrimination.[7]

(two) the content of

As a basic human right of equality, its main content includes the following four aspects: (1) the right of equality principle (2) the subject of right of equality (3) specific rights and equality (4) equal rights etc..[8]According to some data can be seen, for a long time on the equal rights of content is all about "all people are equal before the law" this topic, such as Wang Shijie, Qian Ruisheng's "comparative constitution", Gong Xiangrui's "comparative constitutional and administrative law", Mr Liu Maolin argues that equal rights includes two aspects: a everyone is equal before the law; one is for the weak give special protection. But in recent years the research on equal right out of this predicament, some specific problems about some specific rights such as political equality, equal education, gender equality, equality, equal employment opportunity, equal rights of peasants. Mr. Lin Laifan mainly launches from three aspects: (1) the formal equality and substantive equality; (2) equal application of law and legal equality; (3) equal and reasonable difference..

Three.All people are equal before the law content

China's relevant content of equality right, mainly in the "constitution" in-depth understanding of article thirty-third. Article thirty-third equality can be understood as: (1) citizens regardless of nationality, race, sex, occupation, family background, religious belief, education, property status, length of residence, shall enjoy equal rights under the Constitution and the law, any person may have beyond the constitutional and legal privileges. (2) in our country, citizens shall be equal before the law, it generally refers to the implementation of the law on equality, rather than legislative equality.[9]As Mr. Dong Heping think so: "the nature of equality is the applicable law of equality, rather than the equality of legislation."[10]The equality of justice and law-abiding equality. Specifically including four equal the meaning of the above mentioned. (3) and our country also includes ethnic equality, the equality of men and women etc.. All ethnic groups are equal is a distinctive feature of our civil rights and obligations of equality. Equality means any nationality and other nationalities enjoy equal rights, shall not be subject to any form of discrimination.[11]Equality means citizens regardless of gender shall enjoy equal rights in the political, economic, social, cultural and other domains, and not be treated differently from any external and internal differences.[12]This is also an important content of our civil rights and obligations should be equal, and includes men's and women's equality in the political rights, marriage and family relations of equality, the allocation of labor relations in the equal pay for men and women as well as men and women social status, economic and cultural life and other aspects of society are equal.

Four.Prohibition of discrimination and reasonable difference

'a' definition

Rawls wrote two principles in the "theory of justice" in : first principles -- equal liberty principle, namely the free system of the basic free "each people all have the most extensive and equality compatible system should have an equal right," second principles -- for the principle of equal opportunity and the difference principle, make them: " first, and justice in storage principles consistent case maximum, suitable for the least advantaged class interests (the difference principle) ; second, in accordance with the conditions at the fair equality of opportunity to all duty and position of people just open (equal opportunity."[13]

The difference can be divided into different reasonable difference and unreasonable, unreasonable difference is discrimination, discrimination. The reasonable difference reasonable difference is Rawls second principles, first, prohibits discrimination.Differential treatmentIt is not reasonable difference, no rational basis for differences, including ethnic, racial, gender, for occupation, family background, religious belief, education, property status of parties, the legal distinction or discrimination. The right of equality is a constitutional principle must follow the rule of law is the national basic constitutional rights at the same time; second, reasonable difference.Reasonable differenceRefers to the equality principle of substantive equality, rational basis for the difference in the reasonable extent, is to guarantee the realization of equal rights of the essence, and by the state according to the basic idea of value judgement results right. The state can be for the right reasons. To differentiate between citizens of different races. In fact, almost all law distinguish and classification of citizens "". The correlation between the degree of difference between the constitutionality or legitimacy depends on the difference between the objective and purpose. Such as "citizens" who have reached the age of 18 to participate in the election.[14]In short, the legal distinction must be constitutionally acceptable on the grounds, to show its rationality.

'two' reasonable difference criterion

Equality is relative, equality is not indifference, equality is not egalitarianism, not the pursuit of absolute results. We advocate the principles and concepts of equality, but equality is a very complicated problem. In the condition of the same or similar circumstances, equality means the same as treat, should not be. But in the condition is not the same or similar circumstances, differentiate precisely reflect the principles, ideas and spiritual equality. Therefore, principle and in the ideas of equality, including differential treatment. Equality allows the difference, not all classified all belong to the discrimination, the key is to look at the classification standard is reasonable, whether the difference in so-called. Reasonable difference judgment is not easy, since that the reasonable difference, certain groups, what kind of classifying is reasonable boundaries worth. According to the different conditions can have different standards. The citizen individual differences exist in the realization of the right conditions have, reasonable difference can factors is based on gender, age, nationality, property status, height, objective, can also is the people's knowledge level, the specific occupation, cognitive ability and some other major. Therefore, the difference is whether reasonable, not lump together.

Three, the ConstitutionProtect the citizens right of equality

After the concept and content of the right of equality, the most important is the protection of the right to equality, without practice in this field, the other is empty. To protect the constitutional right of equality in China has been restored after the reform and opening up, has made great progress, but there are still many problems to be improved, such as the guiding ideology is "emphasizing equality", "freedom," ignore "emphasizing substantive equality", "ignore" equal emphasis on formal equality "absolute", 'ignore' equal relative difference ". There are equal rights system is not complete, lack of transparency provisions, the protection mechanism is not perfect, lack of constitutional review system in standard.

(a)To strengthen the legislative protection of the right of equality

Equal protection of rights should be reflected in the legislation, if there is no legal equality on content, protect the equal rights of citizens is an empty word. The concept of equality and the principle of equality throughout the legislative process, whether in the constitution or to develop in the formulation of other laws and regulations, to protect the citizens enjoy equal rights, equal competition and development.

In the legislative process to consider the following two aspects: first, the constitution of our country should learn and absorb the advanced countries and the international human rights law on equal right, the basic content of equal rights specified in the constitution. Second, in other laws, equal right is combined with other rights, the right to equality penetrated into all fields of civil rights, so that people really enjoy the equal rights and equal dignity.

Two.Judicial means to seek the constitutional right of equality

The constitution as the fundamental law of our country, we can not ignore the effect of the Constitution in the protection of equality right on the judicial organ, shall be allowed in certain circumstances applicable constitutional judgment, make the constitution become the ultimate barrier protecting the right to equality. The constitution is the hot issue in theoretical circles. To introduce the judicial review system in China's existing constitutional system difficult to achieve. But can not deny that the constitution is an important barrier to protect the citizens right of equality. The constitution is the important contents of the legal system of modern constitutional state complete, application of constitution is not only an important aspect of the implementation of the constitution, but also the constitutional countries to strengthen the construction of constitutional government, setting up the authority of the constitution content. The more important is that it is a powerful weapon to safeguard human rights and basic civil rights.

Reference:

[1] Han Dayuan Lin Laifan Zheng Xianjun: "seminar on constitutional law" (Second Edition), Renmin University of China press.

[2] Xu Xianming: "the general theory of rights and obligations of citizens", masses of press, 1991.

[3] Dong Heping, Han Dayuan, Li Shuzhong: "the constitution", Law Press, 2000.

[4] Zhang Qianfan, Dong Heping, Han Dayuan, Li Shuzhong: "the constitution", Law Press, 2000.

[5] Dong Heping: Constitutional Law (Second Edition), publishing house of law.

[6] "human rights law", Nanjing University School of law, human rights law "and" writing teaching, science press,

[7][1] John Rolls, the justice theory [M], He Huaihong, translation, Beijing: China Social Science Publishing House, 1988 .

[8] Zhang Qianfan: Constitutional Law: An Introduction (Second Edition), publishing house of law.

[9] Liu Maolin: "Introduction" Chinese constitutional law, Peking University press.

[10] Wang Shijie, Qian Ruisheng: "Comparative Constitution".

[11] Chen Chi: "the concept of the human rights philosophy Scott" carrier ", Journal of Sichuan Normal University (SOCIAL SCIENCE EDITION)", 1999 second.

[12] Li Zhongxia: "connotation" of equal rights, seeHttp://www.calaw.cn/2003-5-29.

[13] Zheng Lu. "People's Republic of China Constitution" the new interpretation of reading [M. Hunan people's publishing house.