“数字弱势群体”权利保护的国家义务及实现路径

State Obligations and the Fulfillment Paths to Protect the Rights of Digitally Vulnerable Groups

国家义务是实现“数字弱势群体”权利保护的根本保障。“数字弱势群体”权利保护的国家义务既有宪法上人格尊严作为价值基础,也有宪法上国家目标条款和基本权利条款作为规范基础。从保护目标上看,“数字弱势群体”权利保护国家义务是为了实现数据分配正义;从保护内容上看,“数字弱势群体”权利保护国家义务包括尊重义务、保护义务和给付义务三个层次;从保护履行上看,政府财政预算成本决定了“数字弱势群体”权利保护国家义务的实现程度。“数字弱势群体”权利保护的国家义务有赖于立法机关、行政机关和司法机关共同分担。立法机关所分担的国家义务表现为及时修改相关部门法,在修法中贯彻“数字人权”和“实质平等”的基本原则;行政机关所分担的国家义务体现为发挥给付、引导和监管的职能;司法机关所分担的国家义务体现为提出检察建议、个案权利救济、发布典型案例和给予技术帮助。

The rapid development of information technologies such as big data and artificial intelligence is constantly changing society's traditional way of life and triggering changes in the social structure.While these information technologies have brought great convenience to people's lives,they have also adversely affected the travel,education,and medical care of many groups.This group of people who cannot skillfully use information technology is summarized as the digitally vulnerable groups.The protection of the rights of digitally vulnerable groups naturally involves the issue of State obligations,which is the fundamental guarantee for the realization of the protection of the rights of digitally vulnerable groups.The proposition of State obligations for the protection of the rights of digitally vulnerable groups can be theorized from the three levels for further discussion:why,what and how.It is a constitutional question whether the State has a legal obligation to protect the rights of digitally vulnerable groups,which has both a constitutional value in human dignity and a normative basis in the State's objectives and fundamental rights provisions of the Constitution.Article 38 of the Constitution of the People's Republic of China provides the constitutional value for the State's obligation to protect the rights of digitally vulnerable groups.First,the"human dignity"clause is the value on which public power is exercised.Secondly,the"human dignity"clause emphasizes the value of respect for human subjectivity.Finally,the"human dignity"clause requires the sustaining of the value of human autonomy.As a constitution that respects and upholds human dignity,it should pay full attention to the subjectivity and autonomy of human beings in the context of the digital era and take the protection of the rights of digitally vulnerable groups as the pursuit of value.Therefore,to ensure that the human dignity of the digitally vulnerable groups is not infringed upon and to respond to the rights of the"technologically illiterate"who are excluded from digital life in a timely manner,has become a constitutional obligation that the State must fulfill.The objective basis of the State's obligation to protect the rights of the digitally vulnerable groups lies in the National Objectives Clauses,including the Socialism Clause,the Production and Social Security Clause,the Education Clause,and the Science and Technology Clause.The four national goal clauses set the constitutional obligation for state organs to promote and popularize information technology in the digital transformation process.Fulfilling the obligation requires the State to guarantee the digitally vulnerable groups equal access to and use of information as the fundamental direction to pursue the value of social equality.On the relationship between rights and obligations,the fundamental rights of citizens require and derive from the legal obligations of the State.The"established fundamental rights provisions"plus"human rights provisions"plus"human dignity provisions"together constitute the constitutional normative basis of the rights of digitally vulnerable groups.In terms of objective,the State obligation to protect the rights of digitally vulnerable groups is to realize the justice of data distribution;in terms of content,the state obligation to protect the rights of digitally vulnerable groups consists of three levels,namely the obligation to respect,the obligation to protect and the obligation to pay.The obligation to respect is manifested in the prohibition of direct infringement of public power and the restriction of the exercise of public power.The obligation to protect not only requires the State to protect the rights of its citizens,but also emphasizes the government's duty to supervise.The obligation to pay mainly relates to material,service,and procedural benefits.In terms of implementation,the cost of the government budget determines the extent to which the State's obligation to protect the rights of the digitally vulnerable groups is realized.In the case of a limited budget,the rights of the corresponding subjects should be effectively guaranteed following the value orientation.The State's obligation to protect the rights of digitally vulnerable groups depends on the cooperation of the legislature,the executive,and the judiciary.The legislature should promptly abolish or amend the relevant branch laws that are not adapted to the digital age,broaden the scope of rights subjects,expand the content of rights types,and develop a dual-obligation subject model for the State and society by establishing the basic principles of digital human rights and adhering to the principle of equality.The obligations of the State shared by administrative organs are reflected in their functions of paying,guiding,and supervising.The paying function mainly consists of material and service payments,the guiding function consists of the promulgation of administrative plans and the implementation of administrative guidance and administrative interviews,and the supervisory function requires,on the one hand,the formation of rules and standards beforehand,and on the other hand,the provision of procedural relief afterward.The State's obligations to the judiciary are reflected in the public interest lawsuits and procuratorial recommendations brought by the Public Prosecutor's Office,as well as in the individual rights remedies provided by the courts,the issuance of typical cases,and the provision of technical assistance,to timely facilitation of social harmony and stability through judicial remedies.