XI Ruochen* & ZHANG Xiang**

 

Abstract: The Qi Yuling case is a crucial juncture in the study of “fundamental rights and private law” in China, yet relevant research is underpinned on two clues. The first is that the increasing interest in the “constitutionalization of private law” worldwide provides knowledge resources and reference materials for scholars in China; the second is the understanding and exploration of the judicial application of the Constitution since the 1980s. Among them, such concepts as “the Constitution has direct legal effect” and “the Constitution needs to be implemented by the people” could have directly affected the Qi Yuling case. Focusing on such topics as the case of Qi Yuling, judicial enforcement of the Constitution, and the compilation of the Civil Code, scholars discussed the ways and scope for including fundamental rights in private law based on their experience abroad. They also looked into specific issues, covering how fundamental rights affect civil acts and the private law effects fundamental rights like personality rights, equality rights, freedom of speech, and protection of personal information. In the context of promoting the full implementation of the Constitution in the new era, “fundamental rights and private law” is still a field with great potential in both practice and theory.

 

Keywords: the effect against a third party · the case of Qi Yuling · the judicial enforcement of the Constitution · Civil Code · constitutionalization of private law

 

In the Constitution, the definition of fundamental rights is a relationship between the state, the society, and the individual. In the Constitution that guarantees people’s rights and “confining power within an institutional cage”, the traditional fundamental right theory takes guarding against the state as its orientation and aims to prevent personal freedom from being infringed upon by the state. However, traditional civil law takes the autonomy of private law as a supreme idea and emphasizes that all legal behaviors depend on the ideas of the parties involved and the state shall not intervene. According to the jurisprudential tradition of public law-private law dichotomy, fundamental rights do not necessarily affect the private law relationship.

In modern society, however, on the one hand, the emergence of large enterprises, social organizations, and economic groups has made two parties of the civil transaction relationship often unequal, allowing a strong private subject to suppress a weak with this suppression usually having the appearance of autonomy of will. On the other hand, the evolution of human rights ideas has posed new challenges to constitutional practice: Can we allow the fundamental rights on which the state is not allowed to infringe to be infringed upon by anyone else? Thus, the issue of the relationship between fundamental rights and private law has generated worldwide concern. In China, with the constant popularity of human rights ideas and the rapid social and economic development brought by the deepening of the reform and opening-up, guided by a series of practices and disputes, the research on the subject of “fundamental rights and private law” has gradually risen and so far, it has got considerable traction. This paper will study the background and development of the subject “fundamental rights and private law” in China and preliminarily arrange and evaluate the relevant research of the jurisprudential circle. It will carry on the past heritage and open up the future. I hope it can provide a reference for future theories and practice. 

 

 

The jurisprudential circle generally believes that the Chinese constitutional group began to discuss the relationship between fundamental rights and private law immediately after the Supreme People’s Court gave its official reply about Qi Yuling’s case in 2001. However, it should be pointed out that two clues inconspicuously existed before the Case, they still exist and they have always been part of the discussion about the relationship between fundamental rights and private law in China. One of the two clues is that constitutionalism of private law has been vigorously debated worldwide since the mid-20th century and the precedents and doctrines derived from it have provided reference materials for the Chinese jurisprudential circle since Qi Yuling’s case. Even at present, it is difficult for the Chinese jurisprudential group to discuss the relevant issues without using the reference to comparative law. A clue that has been overlooked and may be more important is the Chinese Constitution drafters’ and interpreters’ understanding of the implementation of the Constitution. This clue has even directly affected the approval of Qi Yuling’s case. It has also constituted the indispensable background for the discussion about fundamental rights and private law in the Chinese context. 

 

 

According to Stark, the discussion about fundamental rights and private law is not new, with the debates about natural rights appearing at the end of the 18th century and focusing on the security issue of the transaction between private subjects.¹ However, the discussion was not the arguments of modern significance about “private law effects of fundamental rights” at all because the superior position of the Constitution had not been established and constitutional review had not been carried out. The issue of the relationship between fundamental rights and private law did not begin in the jurisprudential circle until the constitutional review system was widely established in various countries after the World War II or affected by the international human rights law, the binding force of human rights on legislation and judicature was established. German scholar Canaris published Fundamental Rights and Private Law in 1984 and then he published an article of the same title in 1999. He explicitly pointed out at the beginning of his article that it had become an international trend to include human rights in private law. He cited British comparative law scholar Markesinis’ statement and reduced it to “constitutionalism of private law”.

 

This trend is not a “German special road”, but a universal phenomenon under the modern Constitution.² How to include fundamental rights in private law has become a hot discussion in the comparative Constitution. Some scholars have compared the influences of human rights on different countries and regions and classified the influences into the following six types: (1) influence of the written Constitution such as influence of Constitution in Denmark, Germany, Greece, India, Ireland, Italy, South Africa and Spain; (2) influence of special bills or bills of rights independent of the written Constitution such as influence of special bills or bills of rights in Canada, Denmark, England and Wales, Ireland and Israel; (3) influence of the legal values which are either embodied in constitutional texts or derived from interpretation of courts; (4) influence of international law (especially the European Convention on Human Rights) as a part of the legal system in some countries such as Denmark, France, Italy, Spain and Germany on private law; (5) in countries or regions with dualist systems such as England, Wales, Ireland and New Zealand, the international human rights treaty has taken effect by including it in their domestic laws and it has influenced civil legislature and judicature; (6) in some countries such as India, international law that has not been included in their domestic laws has influenced their law development (For example, because India is a country that has signed many human rights treaties, as long as these treaties do not violate the Indian Constitution, they can be used as bases for legal interpretation by courts), and then it has influence on private law.³

 

Generally speaking, the rise of “constitutionalism of private law” is not an accident and it has universal reasons. First, in the global scope, the binding force of human rights on the behaviors of the state is becoming increasingly substantial and the legislators of the private law field have also been required to carry out private law protection for some constitutional rights to a certain extent. Second, different institutions and methods of different countries are based on similar reasons, that is, when a private subject as a party becomes increasingly powerful, to protect the weak party in the transaction relationship to prevent economic inequality from causing inequality in the exercise of human rights.⁴ Of course, the specific institutional arrangements and doctrine structures of different countries are different because the economic, social, and cultural backgrounds of the countries are different. For example, in India, the primary threat to individual rights and dignity has long been from powerful private subjects instead of the state. Therefore, when the legislative protection is insufficient, the courts must remedy the private subjects whose human rights are infringed upon and the courts should offer their suggestions and guidance on how private subjects and states take action to protect human rights in the future. These suggestions and guidance will be regarded as the sources of the obligations of states or relevant subjects until the relevant problems are handled by the state through proper legislation.⁵ However, in the United States, due to the leading position of economic liberalism and the primary standpoint of the Bill of Rights to prevent the state from infringing on citizens’ rights, the courts are not willing to accept the so-called private law effects of human rights and they abide by the dualistic public-private structure arrangement.⁶ As for the human rights guarantee mode in the private law relationship, except the United States and Canada that adopt the “state behavior” theory and are inclined to deny that human rights have private law effects, most countries and regions believe that human rights have a direct or indirect effect in private law. Among these countries, France, Greece, India, Ireland, Spain, and South Africa directly protect human rights in their private law fields. In Italy, only when the relevant lawmaking is absent, the direct effect is accepted. In Germany, though the indirect effect is taken as the principle, it still includes some exceptions.⁷

 

Influenced by the academic exchange and the inheritance-acceptance relationship of law, among the comparative law resources, the German third-person effect theory of human rights has most strongly influenced the Chinese jurisprudential circle. Chinese scholars from Taiwan have played the most important role in the introduction of comparative law knowledge.⁸ The arguments and criticisms about “direct effect” and “indirect effect” have dominated the imagination of the jurisprudential circle on the relationship issue between fundamental rights and private law to a large extent. Based on this premise, the “state behavior” theory of the United States usually appears as a contrast or reference. The relevant researchers must demonstrate “why the state behavior theory of the United States should be used as a reference since the German third-person effect theory of fundamental rights has been used as a reference”,⁹ from which the difference of different normal forms in influence can be seen. However, no matter what comparative law resources are used as a reference, the theory and practice of the discussion topic must all be carried out in the domestic constitutional system. In China, the discussion topic about fundamental rights and private law first focused on the implementation and supervision of the Constitution, especially the judicial application of the Constitution, instead of “constitutionalism of private law”, the core concern of the global scope. This points to another academic clue since the 1980s. 

 

 

It can be found from the declarations of the relevant officials of the Supreme People’s Court after the court gave its reply about Qi Yuling’s case that, to a very large extent the reply was not the product of the international “private law constitutionalism” movement, but the result of the constitutional implementation approach that China explored. Here another question must be asked. What concept background does it have to use fundamental rights clauses in the civil trial under the Chinese Constitution? We think that the reply was based on an understanding of the existing constitutional implementation and the understanding can be reduced to the following two points: (1) The Constitution has a direct legal effect; (2) the Constitution needs to be implemented by the people. 

 

 

When the existing Chinese Constitution was drafted, Professor Wang Shuwen explicitly proposed that the Constitution should have direct legal effect and objection to the Constitution could only be carried out through legislature and he also detailed them in a specific way: “As a basic law of the state, the constitution shall have direct legal effect and directly play a legal role. It must be the highest behavior principle that shall be strictly complied with by all the state organs, enterprises, public institutions, social groups, state organ workers, and citizens.”¹⁰ It was explicitly stipulated in Paragraph 4 of Article 5 of the 1982 Constitution of the People’s Republic of China: “All the state organs…must comply with the constitution and law.” Of course, it cannot be simply concluded that this standard expression can directly apply to the constitutional requirements in the judicial process. The discussion topic that is more frequently discussed by the jurisprudential circle is that “the trial should be guided by the constitution”, which is close to the existing indirect effect standpoint. For example, Professor Wang Xiangming thinks: “The people’s courts at all levels from the Supreme People’s Court to district or county people’s courts at the bottom level and their officials must overcome contempt of the Constitution or the erroneous idea that the Constitution is not related to their trial work, seriously learn and master the Constitution and take the Constitution as a guidance regarding their work.”¹¹ However, the Reply of the Supreme People’s Court on whether “Occupational Injury at Own Risk” of Employment Contracts Is Valid published in 1988 directly stated that the civil behavior did not conform to the relevant legal provisions of the Constitution. Though the argument of the reply should be challenged, the reply revealed the standpoint that the Constitution could directly apply in the judicial process. In the 1990s, some scholars consciously noticed the direct application of the Constitution in private law. For example, Professor Zhou Yongkun thought that the Constitution had a direct effect and that the method of “putting the public interests ahead of private interests” should be adopted in the operation. The private law field is different from the public law one. It involves the obligation of the third party. If the fundamental rights of the Constitution apply when the civil law system is not complete, the application is likely to increase the load of a third party.¹² Some people who dealt with actual affairs believed that “the constitutional principle on equality of men and women” should have a direct effect in the civil affairs field and the problems it attempted to solve was the problem of the intervention of human rights in private law after they compared German and Japanese handling modes of the provisions for singles with those of Taiwan.¹³ This shows that the direct effect proposition of the Constitution is not limited to the constitutional priority position in the sense of constitutional review and it implicitly points to the application requirements of the Constitution in the ordinary judicial process in China. 

 

 

Viewing from another aspect, in the discussion about the implementation of the Chinese Constitution, the people are always regarded as one of the subjects that implement the Constitution. Lenin’s classic expression about the Constitution included his considerations in this aspect: “What is a Constitution? Constitution is a sheet of paper on which the people’s rights are written. Where is the guarantee that admits the rights? It is in the strength of all the classes among the people that are aware of these rights and good at gaining them.”¹⁴ The idea of guaranteeing rights and implementing the Constitution by relying on the people was quite common in the 1980s. For example, Peng Zhen especially talked about the six key points on the supervision and guarantee of constitutional implementation when he talked with Hu Sheng, Wang Hanbin, and other persons on April 30, 1983. He said it should be first supervised that the state organs and the state workers strictly comply with the Constitution, “which is the key to the successful implementation of the Constitution”. Second, we should rely on the one billion people, and let the one billion people master the Constitution “and fight against the behavior that violates or breaks the Constitution, which is the greatest strength and the most fundamental guarantee that ensure the successful implementation of the Constitution.” Third, social groups such as labor unions, women’s federations and the Communist Youth League, villagers’ committees, neighborhood committees, and other organizations should learn and publicize the Constitution and fight against the behavior that violates the Constitution. Fourth, newspapers, periodicals, broadcast, television, and other publicity departments should often, repeatedly and vividly publicize the successful implementation of the Constitution according to the actual situation, disclose and criticize behaviors that violate the Constitution, and strive to form powerful public opinions to safeguard the Constitution. Fifth, as mentioned above, we should quickly find problems and signs that may lead to unconstitutional behaviors, seriously solve the problems in time, and not make corrections until unconstitutional behavior occurs. Sixth, the National People’s Congress and its Standing Committee shall supervise the constitutional implementation.¹⁵

 

Though such expressions as “successful constitutional implementation relies on the people” usually refer to the fight of the people against unconstitutional behavior, the idea behind it is similar to “the citizen’s right to resistance”. Viewing from another angle, however, the people should know the Constitution well and comply with it too. Therefore, in the 1980s, a common academic proposition was that a citizen might become an unconstitutional subject. For example, when Professor Xiao Weiyun compared definitions of bourgeois states to violation of the Constitution, he pointed out: “What is a violation of the Constitution? We think that violation of the Constitution means the laws, orders, and administrative measures of states and the behaviors of state organs or citizens that are inconsistent with the constitutional principles or contents.”¹⁶ Influenced by this idea, some scholars still regard the intervention of fundamental rights in private law as constitutional implementation today. For example, Professor Xu Chongde said: “Some universities restrict recruiting female students by increasing the entry score. Some organizations emphasize that they will not accept female students when they hire university graduates. If a university assigns any female student to it, it will refuse to accept the student and return all the documents related to her.” Professor Xu Chongde thought that the universities doing this violated the provision of the Constitution. “The state shall protect women’s rights and interests, let men and women get equal pay for equal work and cultivate and select women cadres”. Therefore, “not each article of our Constitution is fully implemented”.¹⁷

 

If we further discuss the historical background of the theory on citizens’ violation of the Constitution, it dates back to the structural relationship between the state and the society when the existing Constitution was drafted and at the beginning of its implementation. According to the research by some sociologists, a relatively independent society with some autonomy has stopped existing and the state has monopolized almost all the important social resources since the middle and late periods of the 1950s.¹⁸ At the beginning of the reform and opening-up, though the state and the society began to change, the overall “strong state-weak society” structure remained unchanged. 

 

This was reflected in the 1982 Constitution of the People’s Republic of China. Article 11 of the Constitution states that the individual economy “is a supplement to the socialist public economy”. Article 15 states that “the auxiliary function of market regulation” shall be regarded as a part of the planned economy. Articles 16 and 17 state that state-owned enterprises and collectively-owned enterprises shall have operation autonomy in certain conditions. These can generally reflect the relationship between the state and the society in that period. In this context, civil subjects including various “organizations” can be regarded as the extension of the state at different levels, there is no substantial difference between the unconstitutional behaviors of the subjects or their workers and the unconstitutional behaviors of the state. Accordingly, “private law effects of fundamental rights” cannot be mentioned, because the logical starting point of “private law effects of fundamental rights” is the “state orientation” of the Constitution in the dichotomy of the state and the society. This idea believes that the Constitution as a law designed for public power regulates only the relationship between the state and the people and the relationship between state powers, and it should not involve the relationship between persons. Just because of the functional positioning of the “state orientation” of the Constitution, whether fundamental rights affect the private law field has become an issue.¹⁹ On the other hand, on the premise that the state and the society have not been separated from each other, fundamental rights apply to subjects of public power or private subjects, there is no substantial difference between them, and of course, there are no private law effect issues. In China, however, the reform and opening-up, especially the reform of the economic system, have caused some resources to freely flow into the society and the resources are not under the unified control of the state. The organization and distribution of social resources have changed from solely relying on the planned economy system and administrative means to the combination of market, administrative and economic means, and society has changed into a resources and opportunity provider relatively independent of the state.²⁰ The Constitution of the People’s Republic of China was amended in 1993 and 1999, and two propositions — “socialist market economy” and “socialist state under the rule of law” — were established. “The dichotomy of the state and the society” has formed the basis for modern constitutionalism. Thus, it has become necessary to discuss “private law effects of fundamental rights”. The above is the historical background that cannot be ignored when the rise of the research on fundamental rights and private law is observed.

 

 

In the above-mentioned context, the rise of the research on fundamental rights and private law is directly derived from the discussion about a series of practical issues and the response to them. In the Case of Qi Yuling, the right to receive education specified in the Constitution was applied in handling a civil dispute, which not only triggered a debate about the relationship between fundamental rights and private law but also explicitly proposed an issue about the judicial application of the Constitution. As the reply to the Qi Yuling’s case was abolished in 2008, the “judicial enforcement of the constitution” in the sense of constitutional review was gradually abandoned and the research on fundamental rights and private law was continuously promoted with the introduction of the comparative law knowledge. After the Fourth Plenary Session of the 18th National Congress of the Communist Party of China explicitly proposed to compile a Civil Code, such topics as the discussion about the relationship between the Constitution and civil law (a department law) and the discussion about the constitutional basis for the compilation of the Civil Code began to attract widespread attention, the research on the science of civil law began to transform from the legislative theory to the interpretative theory and the research on fundamental rights and private law was required to extend to a deeper level. 

 

 

In August 2001, the High People’s Court gave a written reply about the Case of Qi Yuling: “According to the facts of the case, Chen Xiaoqi has infringed upon the fundamental right of Qi Yuling to receive the education that Qi should enjoy based on the Constitution, Chen Xiaoqi has caused specific damage and he should bear the corresponding civil liability.” Shandong Province Superior People’s Court directly cited the fundamental right to receive the education that each citizen was entitled to according to the Constitution and ruled for the plaintiff. Thus, the case was called “the first case for judicial enforcement of the constitution”, which caused an enthusiastic discussion in the constitutional jurisprudence circle. The core issue of the discussion was divided into two issues based on two different aspects: One issue was whether the court can apply a constitutional clause in the institutional aspect and it is usually regarded as an issue of “judicial enforcement of the constitution” by the jurisprudential circle. Another issue was whether the Constitution as a public law can apply in the private law field, and it is called an issue about “private law enforcement of the constitution” by some scholars.²¹

 

Since the issue of “judicial enforcement of the constitution” began to appear in the 1990s, the jurisprudential circle has discussed the constitutional implementation issue and the constitutional supervision issue. Some early research defined the issue of “judicial enforcement of the constitution” as a special activity in which the state judicial organs handle specific cases by applying the Constitution according to their legitimate functions and power and their legal procedures”.²² After the Case of Qi Yuling, the jurisprudential circle gradually started to apply the concept in two different senses — in the sense of constitutional review and the sense of judicial judgment.²³ The latter of the two senses was directly related to the issue of fundamental rights and private law. The jurisprudential circle attempted to further ask whether and in what sense the court has the power to interpret the Constitution based on the existing state power allocation. If an absolutely negative standpoint is taken on this issue, it will become impossible for fundamental rights to intervene in private law in individual case handling. If a scholar takes a relatively affirmative standpoint, the scholar will have a viewpoint different from that of the court on how to apply the Constitution and the scholar will prefer a direct or indirect effect doctrine. Theories of constitutional interpretation were introduced into the domestic constitutional jurisprudence circle around 2008, which provided a new angle for the scholars considering constitutional interpretation and judicial application of the Constitution. By comparing “private law enforcement of the constitution” and “judicial enforcement of the constitution”, we understand that “private law enforcement of the constitution” pays more attention to the universal aspect of the issue of intervention of fundamental rights in private law, that is, the legitimacy, necessity, potential risks, hazards, etc. of handling private law disputes by applying the Constitution and standards in the legal system which has been traditionally divided into public law and private law. After the reply about Qi Yuling’s case was abolished, “judicial enforcement of the constitution” was no longer significant in the institutional aspect. However, the courts have never stopped quoting the constitutional practice, which also provides native materials and context for the discussion of the jurisprudential circle about the fundamental rights and private law issue.

 

 

The jurisprudential circle has concentrated on considering the relationship between the Constitution and civil law since this century, the beginning of which was marked by the dispute on the constitutionality of the draft of the 2005 Property Law of the People’s Republic of China. After this dispute, the constitutional jurisprudence circle reiterated the idea that the Constitution is the fundamental law of the state and society,²⁴ which also laid a foundation for the discussion about the fundamental rights and private law issue. The Fourth Plenary Session of the 18th National Congress of the Communist Party of China decided to explicitly propose to compile a Civil Code, which provided new impetus for the construction of the rule of law by making political decisions in China and also started a new round of discussion about the relationship between the Constitution and the civil law. Professor Han Dayuan classified the main issues of the relationship between the Constitution and the civil law involved in the civil law compilation into four categories: (1) whether “the law [that] has been formulated according to the constitution” should be written in Article 1 of the General Provisions of the Civil Law of the People’s Republic of China (Draft) and how to understand “according to the constitution”? (2) the issue of whether the Civil Code can have functions of the Constitution; (3) the relationship between the general personality rights and the constitutional personality rights; (4) issues about the legal person’s nature and the Constitution.²⁵ Item 1 and 4 mainly involve the influence of the Constitution on the legislative aspect of civil law, and the other two items are directly related to the issue of intervention of fundamental rights in civil law. As far as the use of “the constitutional functions of civil law” is concerned, it needs to rely on the implementation of human rights guarantees in a civil trial to a large extent. However, if the relationship between the personality rights of the Constitution and the personality rights of civil law needs to be established, the relationship must be established through the third-person effect. It is worth noting that the Civil Code compilation promotes the research on fundamental rights and private law, the promotion is not derived solely from the problems that appear in the legislature process, what’s more, the Civil Code compilation promotes the transformation of the research on civil law from “the legislature theory” to “the interpretation theory” and further pursues the dogmatical carefulness and methodological mature. On the premise of modern constitutionalism, this pursuit naturally generates the requirements for the fundamental rights angle of view.²⁶ In recent years, the jurisprudential circle has discussed some methodological topics such as “constitutional interpretation” and it has introduced fundamental rights theories to solve specific problems of civil law interpretation, which can be regarded as the embodiment of this trend.²⁷

 

 

Viewing from the worldwide angle, in the research on fundamental rights and private law, the discussion topics with the highest theorization degrees that have attracted the most attention from the comparative constitutional law circle are the guarantee approaches of fundamental rights and private law, that is, the modes and scopes for the intervention of fundamental rights in private law in the Constitution systems of all the countries.²⁸ China has accumulated abundant research in this aspect in the past 20 years. Among the abundant studies, some research on areas outside the focus area has provided important methods and cases for reference of the jurisprudential circle. As for making local plans, scholars debated “the third person effect”, which generated many important achievements. They have attempted to transcend this paradigm in recent years.

 

 

As previously mentioned, though most research on fundamental rights and private law has been carried out by referring to comparative law, some research taking comparative law as the object has also been carried out, aiming to provide some references. Besides, some translated works have also exerted some academic influence.

 

1. Germany. Germany is a civil law country based on the traditional division between public law and private law. It is representative of the centralized constitutional review system of the constitutional court. It began to pay attention to the intervention of fundamental rights in private law due to its idea of “the social state”. Therefore, Germany has accumulated a lot of experience in this issue and its theory on the third-person effect of fundamental rights has some worldwide influence. The Chinese jurisprudential circle began to understand the German third-person effect theory after Professor Chen Xinmin published his article “Constitutional Fundamental Rights and Theory on the Third-Person Effect”.²⁹ This article chronologically organized the relevant German doctrines and precedents on private law effects of fundamental rights that were published in the period from the 1950s to the 1980s. It also introduced the traditional effect theories that appeared before and when Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) was promulgated, which greatly broadened the comparative law view of scholars. Then some scholars added the academic progress that has been achieved since the 1990s, such as the relationship between protection obligation and third-person effect, and reconstruction of fundamental rights functions, to the article.³⁰ Some scholars have tried to integrate the different categories of the German theory about the third-person effects of fundamental rights and conducted some structural analyses.³¹ In addition, Fundamental Rights and Private Law by German scholar Canaris has reviewed the development of the third-person effect doctrine that was achieved in the period from the 1950s to the 1980s and put forward “guarded command functions of fundamental rights”. It is a classical article on the German fundamental rights and private law research field and it has great significance to the academic history.³²

 

2. The United States. Compared with theories of the “third-person effect” or “horizontal effect”, theories of “state behavior” in the United States involve different contents. The contents involved in theories of “state behavior” are not so much about issues of the intervention of fundamental rights in private law as about in what special circumstances a private subject behavior should be regarded as a public behavior and be restricted by the Constitution. The theory that strictly abides by the boundary between public law and private law and the “horizontal effect” theory that is popular in Europe are established on different bases. Considering the reference value, some research introduced, reorganized, or clarified the basic ideas of the theories of “state behavior” and attempted to compare it with the paradigm of the “third-person effect”. If some scholars think that the introduction of the Chinese jurisprudential circle to the state behavior principles is limited to the state behavior doctrine, this understanding is not comprehensive. According to the state behavior principles of the United States,the state behavior has been classified into the state behavior that triggers constitutional application and the state behavior as an object of constitutional review. 

 

The latter includes both state behavior itself and the bases and results of state behavior. In this sense, the state behavior principle means that constitutional norms need to have an indirect effect on individuals.³³ Some scholars have summed up the scopes, modes, and standards of state behavior approved by the Supreme Court of the United States of America, and pointed out that theories of state behavior help maintain private law autonomy, freedom of contract, and market competition while they help prevent governments from indirectly infringing on constitutional rights and evading their responsibilities, which can be used for our reference.³⁴

 

3. Other. Compared with the comparative law resources of Germany and the United States, other countries have fewer comparative law resources that the Chinese jurisprudential circle can use. However, some works translated from Japanese law have had some certain influence. During the discussion about “judicial enforcement of the constitution”, some scholars have briefly collated the postwar discussions of the Japanese jurisprudential circle on third-person effects of human rights and the postwar judicial practice in Japan.³⁵ In the translated works aspect, Fundamental Rights Protection and Functions of Private Law by Japanese civil law scholar Keizo Yamamoto has argued in favor of intervention of fundamental rights in private law from the angle of “the state protection obligation theory”. Based on the learned constitutional practice of France, “Constitutional Human Rights Have No Effect on Relationship between Individuals — Reevaluation of ‘No Effect Theory’ about Third Person Effects of Human Rights” by constitutional jurisprudence scholar Kazhiyouki Takahashihas emphasized taking ethical values of natural rights as the core and denied that human rights have private law effect.³⁶ Japanese law knowledge has provided an angle different from that of the German “third-person effect” and it can be used for our reference when we inherit and accept doctrines. 

 

 

 

Encouraged by German law knowledge resources, the Chinese jurisprudential circle mainly adopted the “third-person effect” approach when it began to discuss issues about fundamental rights and private law. Of course, the reasons why scholars approve of direct effect or indirect effect include the thinking about the Chinese constitutional interpretation and constitutional review system in the background of “judicial enforcement of the constitution”, besides universal factors. For example, some research deals with relevant issues in the name of “judicial enforcement of the constitution” or judicial application of the Constitution. Some scholars have explicitly stated that the Constitution belongs to public law based on the division between public law and private law and the contents specified in the Constitution, but it can be used to regulate private-law relationships.³⁷ Some scholars think that the implementation of the Chinese Constitution should follow the road of “private law enforcement of the constitution”, and as for the specific operation, articles focused on governments and clauses about fundamental rights that have been written into law can be excluded. The principle of “strict control and limited application” should be adopted in the process of “private law enforcement of the constitution”, and in fact, indirect application of the Constitution in private law should be advocated.³⁸

 

After some scholars studied theories of “state behavior” and theories of “third-person effect”, they thought that solving private law problems by directly applying the Constitution would harm the public law attribute of the Constitution and endanger the legitimate separation of public law and private law, and the relatively feasible method was to use all-inclusive clauses of private law as ideal media of fundamental rights for private law enforcement of the Constitution and restrict “constitutional” interpretation of civil law in the procedure.³⁹ Based on the constitutional text, some scholars think that the fundamental right to directly restrict third person’s behavior has been included in the Chinese Constitution and citizens can directly cite constitutional fundamental rights and ask for legal remedy in the procedure of exhaustion of legal remedies or when there are no explicit provisions or law as unconstitutional.⁴⁰ However, some other scholars oppose private law application of the Constitution. Some have pointed out that approving private enforcement of the Constitution will infinitely generalize the scope regulated by constitutional right norms and cause the risks that public power may comprehensively intervene in private society.⁴¹ Some other scholars have emphasized that using the judicial application of the Constitution as an excuse and letting the Constitution comprehensively intervene in civil disputes of the purely private sphere carries a tremendous social risk.⁴²

 

Some other studies explicitly limited their topics for discussion to the private law effect field of fundamental rights. For example, scholars advocating the direct effect think that the direct effect can carry out human rights guarantee, it is the natural requirement of social development, some provisions of the Chinese Constitution imply the direct effect on the third person and advocate that the division between public law and private does not necessarily imply denying the direct effect. Besides, the direct effect does not repel the indirect effect and the indirect effect of the Constitution on the third person is self-evident.⁴³ Scholars advocating the indirect effect think that in China because the theoretical support for direct application of the Constitution in the private law field is insufficient, the direct effect may cause people to misunderstand the constitutional function that prevents the state power from being abused and no private influences with great social power have appeared, it is not necessary to let the Constitution have a direct effect on private law.⁴⁴ Some scholars think that letting judicial organs interpret the Constitution in individual cases is not compatible with the Chinese constitutional system and there is no space for the direct effect of fundamental rights on the third person in the system. The judicial guarantee of fundamental rights can be implemented only through the constitutional interpretation of the Standing Committee of the National People’s Congress and the cooperation of judicial organs. Implementing the spirit of fundamental rights by applying all-inclusive clauses is only expedient.⁴⁵ Some other scholars have demonstrated their propositions in the four aspects — constitutional public law nature, constitutional balance role, constitutional stability, and respect of constitutional review organs for the legitimacy of parliamentary legislative democracy — and they think that the Constitution should mainly play its role in the public law field, its role in the private law field is limited to the indirect effect and it should not be directly applied.⁴⁶

 

 

When the jurisprudential circle introduced, understood, and rethought the “third-person effect” theory, some scholars denied the theory. For example, some scholars thought we should draw a very clear distinction between public law and private law by using the “state behavior” theory for reference, and some other scholars attempted to further criticize the theoretical basis or practical significance of the third-person effect doctrine. The scholars advocating for using the “state behavior” theory for reference thought that constitutional fundamental rights and civil rights pointed to different obligators, direct application of the fundamental rights in civil law would cause right conflicts and harm autonomy of private law, and indirect application of the fundamental rights would cause civil rights to be excessively confirmed. The Constitution can only apply to state behavior. Fundamental rights can exceptionally apply to quasi-state behavior, state treasury behavior, and powerful and dominating private behavior.⁴⁷ Some scholars thought that on one hand, the “state behavior” theory adhered to the “government power-private right” dual structure and respected private autonomy; on the other hand, it attempted to regulate and control the “government-private subject-private subject” ternary relationship and prevent governments from evading their responsibilities. They believed that China should use the idea to maintain private interests and be on guard against state power.⁴⁸

 

As for whether the third-person effect theory of fundamental rights is practically significant for China, some scholars think that at the present stage, the main task of our Constitution is to effectively restrict public power, and what we need to do is to improve the constitutional review system and civil legislation instead of developing the third-person effect.49 Some other scholars think that because there is no social infrastructure for private law autonomy and public law-private law dichotomy in China and there is no sufficient precondition for the “constitutionalization of private law” in the judicial norms and the judicial system, China cannot admit the effect of the Constitution on private law like Western countries.⁵⁰

 

Some scholars have further challenged the theoretical basis for the third-person effect doctrine of fundamental rights. They think that there are many drawbacks to the indirect effect theory of fundamental rights in some aspects such as law application, practical consequences, and theoretical logic. In the law application aspect, the theory is in essence the direct application of all-inclusive clauses of civil law in a disguised form. In the practical consequence aspect, the theory applies the fundamental rights that are designed to restrict state power among individuals, which constitutes a big threat to private autonomy. In the theoretical logic aspect, the theory thinks that the objective value of human dignity exclusively belongs to the Constitution, which has neglected the fact that human dignity is the common criterion of the whole legal order and it has radically deviated from the public law-private law dual structure.⁵¹ Some scholars think that the value basis behind the whole law system is the moral theory of super positive law, and law is the main form of moral theory expression. As long as legal contents are not unconstitutional, the formation of the contents depends on political processes and the value source of the contents is the moral value instead of the Constitution.

 

The objective value order theory of fundamental rights has embodied the ideological shackles of German law positivism and the protective obligation theory of fundamental rights includes some errors in principle. Neither the former nor the latter can be used to prove the private law effect of fundamental rights.⁵² Some other scholars think that in fact only the strong social force with legal authority that no individual can avoid must be restricted by the Constitution due to its danger similar to that of state power. Viewing from the norm aspect, because the Constitution adheres to strict standards when it restricts state power, it is difficult to translate the Constitution into a private law relationship. Ordinary legislation and judicial processes can successfully prevent individuals from being improperly influenced by any socially compelling force and provide substantial values that regulate private law relationships without the need to make use of private law effect of fundamental rights.⁵³

 

 

Facing the confrontation between the direct effect doctrine and the indirect effect doctrine, some research attempted to appropriately get rid of or transcend the existing discussion framework. For example, some scholars think that the definitions of direct effect and indirect effect need to be further clarified because the existing research has not accurately defined direct effect and indirect effect. Under the Chinese Constitution, both direct effects in the sense of objective law and direct effect in the sense of subjective rights should be admitted, and direct effect should be affirmed in the sense of normative basis to emphasize that the inter-individual effect of fundamental rights need not resort to the individual-state relationship. In the sense of judicial introduction and application, the indirect effect should be taken as a principle and the direct effect should be taken as an exception to emphasize the complementation and integration of the Constitution and civil law.⁵⁴ Some other scholars think that the indirect effect theory, the state protection obligation theory, and some other theories all belong to the inter-individual effect theory of fundamental rights in the central normal form of the state, some theoretical forms do not accord with the actual names and contents, some means do not match their corresponding aims well and some responses to changes in the law are not good enough. To deal with actual challenges and successfully transform the inter-individual effect theory of fundamental rights from the state center to the social center, the effect of fundamental rights on social power should be established.⁵⁵

 

 

The relationship between fundamental rights and private law is not a theoretical problem, but a practical one. To make the theoretical discussion about how the effect of fundamental rights influences private law and the influence scope have practical significance, the discussion must be very specific and the specific operation and cases must be discussed. Therefore, the jurisprudential circle has conducted a lot of discussions about the operation methods for the intervention of fundamental rights in private law by combining civil cases with civil law research, including comments on cases and discussions about interpretative theories. 

 

 

 

As for individual cases, the constitutional labor right is probably the first fundamental right that has been cited and applied in private law relationships by a Chinese court. The Reply to How Employment Contract Should Strictly Abide by Labor Protection Laws and Regulations (hereinafter referred to as the Reply) issued in 1988 by the Supreme People’s Court has mentioned labor right and it has been used as a basis for demonstration. In the jurisprudential circle, many scholars have affirmed it. For example, some scholars think that the Reply issued in 1988 is a good example of constitutional interpretation, the constitutional interpretation of the Supreme People’s Court has implied that the word “lawbreaking” in Item 5, Paragraph 1, Article 58, General Principles of the Civil Law includes the connotation of “infringing on a fundamental right of citizens” and a court can decide that the related civil conduct is invalid by applying this clause. The Supreme People’s Court has applied a proper method, successfully handled the case, and fully fulfilled its obligation to protect citizens’ fundamental rights.⁵⁶ Some other scholars, however, have challenged the Reply. They think that the court has regarded fundamental rights as both law and public order and good customs, and denied the effect of legal acts. They think the court has adopted an improper method and it should examine its own mistakes.⁵⁷ Some scholars have recently criticized the theoretical premise of the Reply, i.e., the third-person effect issue of labor right. They think that the constitutional labor right has a complicated norm makeup, and it takes the right to freedom as the basis, the state protection obligation as the core, and the state payment obligation as the periphery. The complicacy of the norm makeup has determined that the third-person effect of labor rights should not be treated as the same in different situations. The core of labor rights includes both the state protection obligation and the state payment obligation. The so-called third-person effect is not likely to be generated in this aspect. The above statement has disclosed the mistake of the Reply issued in 1988. What the Reply guarantees is the constitutional right to life and health.⁵⁸

 

 

Since the reply about the Case of Qi Yuling was issued, the case has become one of the hot discussion topics in the jurisprudential circle. Most scholars have criticized the direct application of the right to education and thought that the Reply should be re-examined. For example, some scholars think that the right to education should not be interpreted as a civil right, the civil right should be identified according to the provisions of civil law and the “right to education” should not be rashly treated as a civil right without considering the provisions specified in the General Principles of the Civil Law. The Reply about the Case of Qi Yuling has interpreted the provisions of the General Principles of the Civil Law about liabilities for infringement based on the right to education and the interpretation belongs to constitutional interpretation.⁵⁹ Some scholars think that the case can be handled according to Article 77 and Article 81 of the Education Law of the People’s Republic of China and they suspect the Supreme People’s Court of having violated the doctrine of “exhaustion of legal remedies”.⁶⁰

 

Some other scholars think that constitutional fundamental rights including the right to education can be guaranteed through the general personality rights of civil law. For example, some scholars think that the dual benefits — material benefits and spiritual benefits — gained based on receiving an education are “legal benefits”. The right to education should be protected as a civil right by civil law. The general personality rights of “Rahmenrecht” can provide this channel. Personal dignity, personal freedom, right to vote, right to be elected, right to education, labor right, etc. included in the fundamental rights can all be protected by tort law through the general personality rights of civil law.⁶¹

 

 

 

In the operation method, the influence of fundamental rights on the effect of civil legal acts is an important approach through which fundamental rights intervene in private law. Therefore, some research paid attention to the application of the theory of fundamental rights in this aspect. For example, some scholars think that the influence of fundamental rights on the effect of civil legal acts should be achieved through some compulsory norms such as public law and the principle of public order and good social customs. Violating the compulsory norms as public law does not necessarily have a negatory influence on the effect of civil legal acts and the court should judge whether the effect of civil legal acts denying the violation of the compulsory norms as public law excessively infringes upon the related fundamental rights. Violating public order or good social customs is one of the important causes that make civil legal acts invalid. When a judge applies the principle of public order and good social customs to judge the effect of civil legal acts, the judge must properly objectify it by virtue of fundamental rights. However, the traffic of the fundamental rights that have been implanted into the private law field must be controlled.⁶² Some scholars have conducted some analyses from the angle of building “a cross-law territory hermeneutic framework” and think that preventing legal acts from taking effect in essence involves the coordination between private law autonomy and other values and now it cannot be covered by the traditional hermeneutics of civil law with private law autonomy as its vertex. Therefore, it has become necessary to introduce the viewing angle of the fundamental rights theory. The compulsory provisions that restrict legal acts and public order and good social customs can be classified into the fundamental right protection type and the public benefit achievement type. Judging the effect of legal acts according to the compulsory provisions of the fundamental right protection type should be handled through fundamental right conflicts while the compulsory provisions of the public benefit achievement type emphasize the achievement of one party’s fundamental rights. In the operation process of the public order and good social customs clauses, the judicial person should first apply the lower-level law of the fundamental right protection type. Only when the lower-level law does not exist, the effect of legal acts should be denied based on the other requirements for the protection of fundamental rights.⁶³

 

 

(1) Personality rights. Except for general discussions about the influence of fundamental rights on private law, more and more attention has recently been paid to the application of all the fundamental rights in private law. In the Civil Code compilation process, another discussion topic that accompanies the debate about whether a separate chapter should be used to discuss the personality rights is whether the personality rights are constitutional rights or civil law rights. 

 

If the personality rights are both constitutional rights and civil law rights, what is the relationship between them? As for this, some scholars think that fundamental rights under the constitutional system and personality rights under the civil law system are different in their respective generation and development paths, subjective right attributes, and other aspects. However, taking the objective legal attribute of fundamental rights as the bond, the fundamental right and the personality can indirectly interact, the two perform their function in different systems, they do different work and cooperate, and they can neither be mixed up nor replace each other.⁶⁴ Some other scholars think that the “personal dignity” specified in Article 38 of the Constitution of the People’s Republic of China is more inclined to a general personality right. The general personality rights of civil law are the product generated after the constitutional general personality rights “indirectly” applies to civil law. Meanwhile, the general personality rights specified in the Civil Code of the People’s Republic of China (hereinafter referred to as the Civil Code) have become the result achieved when the civil legislator performs the state protection obligation of fundamental rights. Viewing from the standpoint of direct effect, indirect effect, or state protection obligation, it is inevitable that the constitutional general personality rights exert influence over the general personality rights of civil law.⁶⁵ As for many personality rights norms of the Civil Code, some scholars think that constitutional human rights, personal dignity, and socialist principles have constituted the background norms for the interpretation of the clauses about personality rights. The numerous clauses of the personality rights part of the Civil Code contain fundamental rights waiver, fundamental rights conflicts, conscience freedom protection, and some other constitutional principles. Civil judges have the constitutional obligation to examine and discuss the constitutionality when they interpret and apply the personality rights norms. Therefore, they should deliberate “do not endow any rights with any usual priority status”, “practice compromise”, “optimization of fundamental rights”, “proportionality” and other public law principles, and they should make proper tradeoffs in personality rights cases related to fundamental right conflicts.⁶⁶

 

(2) Right of equality. Equality rights protection is an important issue to which Chinese legal construction has paid close attention since the 1990s. At the beginning of the century, accompanying the “judicial enforcement of the constitution” movement, a batch of classical cases of equality right lawsuit such as “the case of Jiang Tao accusing Chengdu Branch, People’s Bank of China of the stature condition for clerk recruitment”, “the case of Zhang Xianzhu accusing Wuhu City Human Resources Bureau, Wuhu City, Anhui Province, of rejecting hepatitis B virus carrier in its civil servant recruitment” and “the case of Zhou Xianghua accusing Pingdingshan Branch, China Construction Bank of forcing women clerks to retire at 55” successively appeared in China. However, due to the barriers in the system, judicial organs rarely responded to appeals for constitutional equality rights guarantee. After the “judicial enforcement of the constitution” movement suffered a setback, the judicial protection of equality right gradually turned to the anti-discrimination lawsuit direction and intervened in private law in this sense. The Employment Promotion Law of the People’s Republic of China issued in 2008 explicitly endowed citizens with the right to the judicial remedy when they are discriminated against. The Announcement on Adding Cause of Action to Civil Case (Law Document No. 344 (2018)) issued in 2018 by the Supreme People’s Court added “Equal Employment Right Dispute” to Item “General Personality Rights Dispute”, and in fact, two parallel remedy mechanisms for labor dispute and personality infringement dispute formed. Such lawsuit mechanisms are the results the legislator produces by performing the equality right protection obligation. Meanwhile, individual cases inevitably involve the third-person effect of equality right. 

 

In the jurisprudential circle, On Prohibition of Discrimination published in 2006 by Professor Zhou Wei systematically stated the legal definition of discrimination, the effect of discrimination prohibition, and other relevant contents for the first time, and it pointed out that the effect of discrimination prohibition could directly restrict personal behavior.⁶⁷ Some scholars have demonstrated in the theory aspect that including the anti-discrimination principle in civil transaction relationships is the overall expansion result of the effect of human rights and fundamental rights. Its background was that civil law would no longer include the charter function of civil society, and the fundamental right to not being discriminated against entered civil law via “state power to shape the society” (social state principle). The formal equality view of traditional civil law was hereby challenged. In the private sphere and the process of the integration of the state and the society, the equality view of civil law must submit to the constitutional equality view.⁶⁸

 

(3) Freedom of speech. Because constitutional freedom of speech is liable to conflict with personality rights, it is frequently referenced in civil infringement disputes. After some scholars analyzed 103 civil judgments, they pointed out that as long as a court applied the freedom of speech clause, it admitted the inter-individual effect of the clause. Furthermore, all the civil judgments directly discussed conflicts between freedom of speech and civil rights and they did not include any constitutional interpretation of all-inclusive clauses of civil law. Therefore, it is obvious that the courts admit that the freedom of speech clause has a direct effect on individuals. In the freedom of speech boundary definition aspect and the judicial judgment method selection aspect, our courts tend to use the theory of the United States Constitution as a reference on the whole.⁶⁹ Some scholars pointed out based on some case studies in which some freedom of speech clauses were cited that the conditions for citing the Constitution in our civil judgment documents were disorderly and unsystematic, the judgment documents did not explain the conditions for citing the Constitution at all in most circumstances, and the Constitution was mainly cited at random. To return public law attributes to the Constitution, restrict the scope of the sphere directly affected by the constitutional objective values and explicitly determine the specific condition types for citing the Constitution in the civil judgment process are effective approaches to prevent courts from citing the Constitution arbitrarily. The Supreme People’s Court should explicitly state that a case meets the condition for citing the Constitution if it involves public power or public interests.⁷⁰ This viewpoint is inclined to deny that freedom of speech has a private law effect in principle. According to this viewpoint, it applies to private law only when one party can be regarded as a subject of public power or social public power. 

 

(4) Right to personal information protection. The right to personal information protection is not one of the fundamental rights explicitly enumerated in the current Constitution. During the legislation of the Personal Information Protection Law of the People’s Republic of China, many scholars believe that the basis for the legal system of personal information protection lies in the right to personal information protection as a constitutional fundamental right.⁷¹ The Constitution and Law Committee has also related personal information protection to the three clauses of the Constitution — the human rights clause, the personal dignity clause, and the communication freedom and communication secrecy clause in the review report of the draft of the Personal Information Protection Law of the People’s Republic of China.⁷² Thus, the guarantee of the constitutional right to personal information protection in civil law has also attracted the attention of the jurisprudential circle. For example, some scholars think that at the constitutional level, individuals should be endowed with the right to self-determination of personal information when the state (public power organ) infringes upon the fundamental right to personal information; at the civil law level, the space for the right to self-determination of personal information to existing is very small and the right exists only in the information processing relationship. When someone wants to “apply” the constitutional right to self-determination of personal information in civil law by virtue of the indirect third-person effect theory or the objective value theory, the person must carry out the necessity and appropriateness examination, prove that the infringer is a “powerful party” like a public power organ and prove that the “powerful party” engages in information processing.⁷³ Some other scholars think that to prevent personal information processing from bringing individuals harmful consequences, based on the structural inequality between individuals and platforms in the actual strength and the technology, accumulation, and structure characteristics of the personal information processing risks, it shall have higher legitimacy to apply the effect of the fundamental right norms in the civil relationship represented by the “user-platform” that should be regulated by applying private law.⁷⁴

 

 

The background for the appearance of fundamental rights and private law in China is the relatively independent systems with autonomous resources and power that have gradually formed since the reform and opening-up. After “the socialist market economy” and “socialist country under the rule of law” were written in the Constitution, whether the fundamental right norms that had been designed to restrict the public power of the state can still apply to individuals and how to apply to them became issues. Based on the extraterritorial experiences on the rule of law learned from foreign countries by the Chinese jurisprudential circle, the Chinese jurisprudential circle has actively responded to a series of practical issues such as “the Case of Qi Yuling”, “judicial enforcement of the constitution” and Civil Code compilation, and achieved abundant research results in the field.

 

In the relationship between fundamental rights and private law, the Chinese jurisprudential circle has put the most effort into the issue of the mode and scope of the intervention of fundamental rights in private law. On the one hand, the issue involves the relationship between public law and private law, the relationship between the Constitution and civil law, and basic theoretical issues such as fundamental rights guarantee and change in civil law ideas. On the other hand, it is related to the discussions about the systems such as constitutional application, constitutional review, and judicial application of the Constitution. Therefore, it has attracted the attention of many scholars, and they have enthusiastically discussed and debated the issues from various angles. Among the scholars, most have affirmed that fundamental rights have an effect on private and adopted the “third-person effect of fundamental rights” theory of German law as their path. 

 

However, how to apply the effect and whether “direct effect” or “indirect effect” should be applied are debated. Though some people advocate the direct effect theory, many scholars prefer the indirect effect theory because of its compromise standpoint between the direct effect theory and the no effect theory. In addition, the research on constitutional interpretation also often implies the indirect effect theory.75 Based on this, some scholars have attempted to get rid of or transcend the existing research framework, clarify the meanings of the terms, re-explore the structural and substantive issues, and help further deepen the research on fundamental rights and private law in recent years. Of course, out of consideration for actual factors or criticism of the third-person effect theory standpoint of fundamental rights, some scholars deny the private law effect of fundamental rights. However, the intervention of human rights in private law has become a global trend, the idea that denies the private law effect of fundamental rights may not last long and it is not likely to become the mainstream in the jurisprudential circle.

 

As the research on the Constitution and civil law develops, especially more and more detailed analyses of each fundamental right and constantly deepening discussions about the civil law interpretation theory, the research on the specific operation of legal interpretation such as how fundamental rights affect the effect of civil legal acts and how various fundamental rights affect civil law is being gradually carried out. Based on the current law and the empirical research on the Constitution cited by courts, scholars have seriously explored and actively attempted at localization and practical application of private law effect of fundamental rights. The paper thinks that the continuous development of the research on fundamental rights and private law finally needs to transcend the cultivation of extraterritorial theories and combine them with Chinese legal practice. In recent years, the full implementation of the Constitution, especially the progress of the constitutional review and recording review work, has been providing important system channels for the influence of fundamental rights on private law. On the one hand, the Legislation Law of the People’s Republic of China (hereinafter referred to as the Legislation Law) was amended in 2015 and Working Measures for the Recording and Review of Regulations and Judicial Interpretations adopted in 2019 have clarified and refined the basic procedures, standards, feedback, etc. of the judicial interpretation recording review. At present, “to strengthen the recording review work is an important task to improve the constitutional supervision system”.76 The recording review for judicial interpretation will vigorously help courts further implement the constitutional spirit, especially the requirements for human rights guarantee, in the legal interpretation work.77 On the other hand, the establishment and improvement of the constitutional review mechanism have further expanded the system space in which the Supreme People’s Court exerts the power to request a review according to Article 99 of the Legislation Law. 

 

It has become feasible and necessary to some extent that the Supreme People’s Court should decide to request the Standing Committee of the National People’s Congress to review a law or regulation being suspected of being unconstitutional when a court applies the law or regulation in a case. This specific review is different from an abstract regulation review. It provides space for the effect of fundamental rights while it guarantees the constitutionality of individual case judgment. In this sense, what the paper has discussed about is just a periodic summary or review. In China, “fundamental rights and private law” is still a research field with great potential, in both the academic field and practice.

 

(Translated by LIU Zhao)

 

* XI Ruochen ( 奚若晨 ), Doctoral Candidate of Peking University Law School. 

 

** ZHANG Xiang ( 张翔 ), Professor of Peking University Law School.

 

1. Christian Starck, “How Were Fundamental Rights Included in Private Law and Their Effect?”, in Legal Culture Achievements Christian Starck, compiled by Li Jianliang, translated by Li Jianliang (Taipei: Yuanzhao Press, 2017), 112-114. 

 

2. Claus-Wilhelm Canaris, Grundrechte und Privatrecht: eine Zwischenbilanz, 1999, S. 10. “German special road” (deutscher Sonderweg) is a term of the science of history and it refers to a special cultural situation in which German society traditionally thought it had long been. Therefore, the universal value of the proposition does not necessarily conform to the requirements of Germany. 

 

3. Dawn Oliver and Jorg Fedtke, “Comparative Analysis”, in Human Rights and the Private Sphere: A Comparative Study, Dawn Oliver and Jorg Fedtke eds. (London: Routledge-Cavendish, 2007), 469. 

 

4. Ibid., 475-476.

 

5. Ibid., 478.

 

6. Ibid., 504. 

 

7. Ibid., 477.

 

8. In the research on the discussed issues about fundamental rights and private law, the more frequently referred works of Taiwan scholars are mainly the following: Chen Xinmin, “Fundamental Rights of Constitution and the Third Person Effect Theory”, Basic Theory of German Public Law (volume One), Chen Xinmin (Jinan: Shandong People’s Publishing House, 2001), 287-343; Fa Zhibin, “Private Relationship and Constitutional Guarantee”, in Human Rights Guarantee and Legal System of Constitutional Interpretation, Fa Zhibin (Taipei: Yuedan Publishing House Corporation Limited, 1993), 1-64; Xu Zongli, “Restriction of Fundamental Rights on State Treasury Behavior”, Law and State Power, Xu Zongli (Taipei: Yuedan Publishing House Corporation Limited, 1993), 1-71; Su Yongqin, “Civil Law Effect of Constitutional Rights”, Theory and Practice of Constitutionality Control, Su Yongqin (Taipei: Yuedan Publishing House Corporation Limited, 1994), 15-75. 

 

9. Zou Yi, “When Do Constitutional Rights Restrain Personal Behavior — the State Behavior Theory of the United States and Using It as a Reference”, The Jurist 3 (2021): 63. 

 

10. Wang Shuwen, “On Supreme Legal Authority of Constitution”, Chinese Journal of Law 1 (1981): 2.

 

11. Xu Chongde, Wang Xiangming and Song Ren, Chinese Constitution Course (Beijing: People’s Court Press, 1988), 68 (this part written by Wang Xiangming).

 

12. Zhou Yongkun, “On Direct Effect of Constitutional Fundamental Rights”, China Legal Science 1 (1997): 5.

 

13. Yu Min, “On Direct Effect of the Constitutional Principle of Equality of Men and Women”, China Legal Science 6 (1995): 103-107. 

 

14. Lenin, “Between Two Battles”, Complete Works of Lenin, volume 12 (Beijing: People’s Publishing House, 1987), 50. 

 

15. Archives on Peng Zhen, 1983, volume 154, cited from Liu Songshan, “Peng Zhen and Constitutional Supervision”, Journal of the East China University of Politics & Law 5 (2011): 146. 

 

16. Xiao Weiyun, “On Constitutional Implementation Guarantee of Various Countries”, Collected Papers on Constitution, compiled by Zhang Youyu (Beijing: Masses Publishing House, 1982), 294. 

 

17. Xu Chongde, Chinese Constitutional Jurisprudence (Tianjin: Tianjin People’s Publishing House, 1986), 17. 

 

18. Sun Liping, Wang Hansheng, Wang Sibin, Lin Bin and Yang Shanhua, “Changes in the Chinese Social Structure since the Reform”, Social Sciences in China 2 (1994): 48. 

 

19. Zhang Xiang, “Expansion of Fundamental Rights in Private Law Effects — Taking Modern China as the Background”, Peking University Law Journal 5 (2003): 545-546. 

 

20. Sun Liping, Wang Hansheng, Wang Sibin, Lin Bin and Yang Shanhua, “Changes in the Chinese Social Structure since the Reform”, 47-52.

 

21. “The Case of Qi Yuling: Response of Scholars — Discussion of Constitution and Administrative Law Scholars at Peking University Law School”, Legal Daily, September 16, 2001. 

 

22. Wang Lei, Judicial Enforcement of the Constitution (Beijing: China University of Political Science and Law Press, 2001), 19. 

 

23. To distinguish this, see Shangguan Piliang, “Current Approaches and Methods for Judicial Enforcement of the Chinese Constitution”, Modern Law Science 2 (2008): 3. 

 

24. Han Dayuan, “Evolution of the Relationship between Constitution and Civil Law in China — Collation of the History of a Doctrine”, Tsinghua University Law Journal 6 (2016): 165. 

 

25. Ibid., 166–167. 

 

26. Bernd Rüthers thought: “Methodological issues are constitutional issues”. Vgl. Bernd Riithers, Methodenfragen als Verfassungsfragen, 40 Rechtstheorie, Heft 3 (2009), S. 253-283. 

 

27. There are many research related to the former and it will not be repeatedly described here. The latter is more frequently embodied in the personality rights law field, such as Wang Liming, “Personality Dignity Value in Personality Rights Law and Its Implementation”, Tsinghua University Law Journal 5 (2013), and Wen Shiyang, “General Personality Rights in the View of Civil Code”, China Legal Science 4 (2022). 

 

28. Stephen Gardbaum, “The 4 Horizontal Effect of Constitutional Rights”, Michigan Law Review 102 (2003): 387 and 393.

 

29. Chen Xinmin, “Fundamental Rights of Constitution and the Third Person Effect Theory”, 287-343. 30. Zhang Wei, “Issues about Third Person Effects of German Fundamental Rights”, Zhejiang Social Sciences 1 (2007). 

 

31. Xu Ruichao, “Category and Essence of Third Person Effects of Fundamental Rights”, Shanghai Jiao Tong University Law Review 1 (2021). 

 

32. Claus-Wilhelm Canaris, “Fundamental Rights and Private Law”, translated by Zeng Tao and Cao Yuchen, Journal of Comparative Law 1 (2015). 

 

33. Jiang Hui, “State Behavior Principles of the United States and Constitutional Fundamental Rights Norms Have Effect on Individual — Start with Constitutional Application Triggered by Judicial Decision”, Peking University Law Review, the second series of volume 20 (Beijing: Peking University Press, 2020). 

 

34. Zou Yi, “When Do Constitutional Rights Restrain Personal Behavior — the State Behavior Theory of the United States and Using It as a Reference”, 63.

 

35. Zhang Yunqi, “Comments and Practice about Third Person Effect of Human Rights in Japan”, Constitutionalism Review, volume 3, compiled by Zhang Qingfu (Beijing: Law Press · China, 2003). 

 

36. Keizo Yamamoto, “Fundamental Rights Protection and Functions of Private Law”, translated by Liu Tao, Shanghai Jiao Tong University Law Review 1 (2001); Kazhiyouki Takahashi, “Constitutional Human Rights Have No Effect on Relationship between Individuals — Reevaluation of ‘No Effect Theory’ about Third Person Effects of Human Rights”, translated by Chen Daoying, Law and Economy 5 (2018). 

 

37. Wang Lei, “New Exploration of Constitutional Implementation — Several Constitutional Issues about the Case of Qi Yuling”, Social Sciences in China 2 (2003). 

 

38. Cai Dingjian, “Private Law Enforcement Approach of Chinese Constitutional Implementation, Social Sciences in China 2 (2004). 

 

39. Liu Zhigang, “Jurisprudential Analysis of ‘Private Law’ Application of the Constitution”, Chinese Journal of Law 2 (2004). 

 

40. Zhou Wei, Research on Judicial Remedy of Constitutional Fundamental Rights (Beijing: People’s Public Security University of China Press, 2003), 40–45. 

 

41. Shen Kui, “Start of Constitutional Rule Era — Doubts about the First Case for Judicial Enforcement of the Constitution”, Constitutionalism Review, volume 3, compiled by Zhang Qingfu (Beijing: Law Press · China, 2003), 540–563. 

 

42. Qin Qianhong, “Several Jurisprudential Considerations on ‘the First Case for Judicial Enforcement of the Constitution’”, Studies in Law and Business 1 (2002). 

 

43. Jiao Hongchang and Jia Zhigang, “Theory and Practice on Fundamental Rights vs Third Person Effect — Concurrent Discussion on Guiding Significance of the Theory to Judicial Enforcement of the Chinese Constitution”, Xiamen University Law Review 4 (Xiamen: Xiamen University Press, 2003), 215–256. 

 

44. Xu Zhendong, “Civil Law Effect of Constitutional Fundamental Rights”, Studies in Law and Business 6 (2002). 

 

45. Zhang Xiang, “Expansion of Fundamental Rights in Private Law Effects — Taking Modern China as the Background”, 545-546.

 

46. Zhang Qianfan, “On Definition of Constitutional Effect and Its Influence on Private Law”, Journal of Comparative Law 2 (2004). 

 

47. Yu Fei, “Distinction between Fundamental Rights and Civil Rights and Influence of Constitution on Civil Law”, Chinese Journal of Law 3 (2008). 

 

48. Zou Yi, “When Do Constitutional Rights Restrain Personal Behavior — the State Behavior Theory of the United States and Using It as a Reference”, 63.

 

49. Chen Daoying and Qin Qianhong, “Re-understanding of Effect of Constitutional Right Norms on the Third Person”, Journal of Henan Administrative Cadre Institute of Politics and Law 2 (2006). 

 

50. Qian Fuchen, “Basic Understanding of the Private Law Effect Issues of the Chinese Constitution”, Contemporary Law Review 2 (2014). 

 

51. Li Haiping, “Criticism of Indirect Effect Theory of Fundamental Rights”, Contemporary Law Review 4 (2016). 

 

52. Huang Yuxiao, “On No Effect of Fundamental Rights on the Third Person”, Tsinghua University Law Journal 3 (2018). 

 

53. Jiang Feng, “Facts and Norms in Constitutional Private Effect: One Analytical Framework”, Studies in Law and Business 1 (2020). 

 

54. Yang Dengjie, “Inter-Individual Effect of Fundamental Rights: Direct or Indirect?”, Peking University Law Journal 2 (2022). 

 

55. Li Haiping, “On Transformation of Inter-Individual Effect of Fundamental Rights”, China Legal Science 2 (2022). 

 

56. Xie Libin, “On Fundamental Rights Protection of the Court”, The Jurist 2 (2012). 

 

57. Zhang Hong, “On Criteria for Judging a Fundamental Right as a Legal Act Invalid — Review of the Reply of the Supreme People’s Court about the Case of “Occupational Injury at Own Risk” issued in 1988, The Jurist 6 (2009). 

 

58. Du Qiangqiang, “The Norm Makeup of Labor Right and Its Third Person Effect — Re-discussion about the Reply of the Supreme People’s Court about the Case of ‘Occupational Injury at Own Risk’”, Northern Legal Science 5 (2018).

 

59. Liang Huixing, “The Case of Qi Yuling Should Not Be Settled Based on the Constitution — Calm Thinking about Judicial Enforcement of the Constitution”, Legal Science World 4 (2002). 

 

60. Hu Jinguang and Ren Duanping, “Thinking about the Right to Education from the Angle of Constitutional Jurisprudence”, Chinese Educational Law Review, compiled by Lao Kaisheng, vol. 1 (Beijing: Educational Science Publishing House, 2002), 43–59. 

 

61. Zhang Hong, “On the General Personality Rights as a Protection Means of Fundamental Rights — Taking Re-review of the Case of Qi Yuling as the Center”, Studies in Law and Business 4 (2009). 

 

62. Liu Zhigang, “Influence of Fundamental Rights on Civil Legal Acts and Its Extent”, China Legal Science 2 (2017). 

 

63. Zhang Cheng, “Viewing from the Fundamental Right Theory, Important Elements for Validity of Legal Act Obstruction — a Cross-Law Territory Hermeneutical Attempt”, Chinese Journal of Law 2 (2019). 

 

64. Zhang Shanbin, “Independence and Interaction of Civil Law Personality Rights and Constitutional Personality Rights”, Legal Forum 6 (2016）.

 

65. Wang Kai, “On Constitutional General Personality Rights and Its Influence on Civil Law”, China Legal Science 3 (2017). 

 

66. Zhang Xiang, “Constitutional Implication of Civil Law Personality Rights Norms”, Law and Social Development 4 (2020).

 

67. Zhou Wei, “On Prohibition of Discrimination”, Modern Law Science 5 (2006). 

 

68. Liu Zhengfeng, “View the Civil Transaction Relationship and Observe Innovation of Contemporary Civil Law Ideas from the ‘Anti-discrimination Principle’ Angle”, Law and Social Development 1 (2017). 

 

69. Chen Daoying, “Interpretation of the Constitutional Freedom of Speech Clause in Civil Judgment of China — Taking the 103 Civil Judgments from 2008 to 2016 as the Samples”, Journal of the East China University of Political Science and Law 1 (2017). 

 

70. Li Haiping and Shi Jing, “The Critique of Conditional Arbitrariness in Citing the Constitution in Civil Judgment — the Case Study of Citing the Clause of Freedom of Speech”, Political Science and Law 8 (2020). 

 

71. Wang Xixin and Peng Chun, “Constitutional Base for the Personal Information Protection System”, Tsinghua University Law Journal 3 (2021). 

 

72. Jiang Bixin, “Report of the Constitution and Law Committee of the National People’s Congress on the Review Results of ‘the Personal Information Protection Law of the People’s Republic of China (Draft)’ Delivered at the 30th Session of the Standing Committee of the 13th National People’s Congress on August 17, 2021”, Communique of the National People’s Congress of the People’s Republic of China 6 (2021). 

 

73. Wang Yuan, “Expression of Personal Information Protection in Civil Law — On the Relationship between Civil Law and Personal Information Protection Law”, Journal of the East China University of Political Science and Law 3 (2021). 

 

74. Zhang Xiang, “Constitutional Justification of the Right to Personal Information — Based on the Reflection on the Distinction between the Protection Theory and the Dominating Right Theory”, Global Law Review 1 (2022). 

 

75. Yang Dengjie, “Inter-Individual Effect of Fundamental Rights: Direct or Indirect?”, 286.

 

76. Shen Chunyao, “Report of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress on the Recording Review Work since the 12th National People’s Congress, i.e., 2017 Delivered at the 31st Session of the Standing Committee of the 12th National People’s Congress on December 24, 2017”, The National People’s Congress of the People’s Republic of China 1 (2018): 9. 

 

77. In recent years, the constitutional practice of judicial interpretation has been guaranteed through the recording review. For example, the Recoding Review Work Report issued in 2020 pointed out that the provisions on the difference in the personal damage compensation calculation standards of urban and rural residents in the judicial interpretation of the Supreme People’s Court was inconsistent with the relevant constitutional spirit, they are no longer suitable for the current social development and they should be modified and improved in time. On April 27, 2022, the Supreme People’s Court published the Decision on Modifying ‘the Interpretation of the Supreme People’s Court on the Issues of Applicable Law for Handling Personal Damage Compensation Cases’, and it changed the compensation for disability, compensation for death and living cost of dependents in the personal damage compensation case from separate urban and rural compensation standards to the unified compensation standard for both urban and rural residents. This can be regarded as the constitutional interpretation carried out to prevent the result of the legal interpretation from being unconstitutional. It is the constitutional control over legal interpretation based on constitutional equality right guarantee. See Shen Chunyao, “Report of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress on the 2020 Recording Review Work — Delivered at the 25th Session of the Standing Committee of the 13th National People’s Congress on January 20, 2021”, Communique of the Standing Committee of the National People’s Congress of the People’s Republic of China 2 (2021): 35.