公民基本权益的概念证成——以“强制亲子鉴定”备案审查案例为中心

The Conceptual Reasoning of Citizen’s Fundamental Rights:Centered on the Cases of“Compulsory Paternity Test”for the Filing Review

2021年,全国人民代表大会常务委员会法制工作委员会在备案审查工作报告中披露的“强制亲子鉴定”案的审查结论中认为,亲子关系涉及公民人格尊严、身份、隐私和家庭关系和谐稳定,属于公民基本权益,受宪法法律保护。该审查结论首次提出“公民基本权益”的概念,这既是对宪法上所规定的权利和利益的重大发展,也提出了如何认识基本权益的问题。通过分析发现,人格尊严、家庭关系和谐稳定属于我国宪法明确列举的基本权利,身份、隐私、亲子关系虽然未被我国宪法所列举,但仍然受宪法上人格尊严、家庭关系的保护。因此,公民基本权益是公民基本权利和基本利益的总称,宪法上明确列举的权利属于基本权利,而宪法上虽未列举但受宪法基本权利保护的属于基本利益。

In the year of 2021,the report on the cases of“compulsory paternity testing”by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress(NPC),stated that parent-child relations are citizens’fundamental rights,and involve the human dignity,identity,privacy,and the harmony and stability of family relations of the citizens,which are protected by the Constitution and laws.The conclusion of the review raised for the first time the concept of“citizens’fundamental rights and interests”,which is a significant development of the rights and interests stipulated in the Constitution,and also asks how to recognize these fundamental rights and interests.Recently,in the process of drafting the Personal Information Protection Law of the People’s Republic of China,scholars of civil law research in China have once again engaged in a lively discussion on the distinction between rights and interests regarding the nature of personal information.Studying personal information protection on the binary basis between rights and interests is ostensibly to address the need to determine the attribution of civil liability,but is actually a choice of position on the scope and degree of personal information protection.However,with the development of society,the simple demarcation of the two is difficult to serve as a legitimate basis for differential protection in terms of civil liability.A unified expression of rights and interests of civil rights and interest s can effectively address the real needs of the civil legal system in order to achieve adequate civil remedies accordingly.The fundamental rights of the Constitution is mainly a citizen’s right to claim against the state,in the sense of a subjective right that“individuals can claim against the state”;in view of the public attributes of the state,the citizen is difficult to place contractual liability on the state for the remedy,but mainly through the mode of tort liability.For the purpose of comprehensive protection of fundamental rights,the use of the concept of interest merely leaves the distinction from constitutional perspective between rights and interests a narrow meaning:to be typologized or not.Judging whether a certain interest is fundamental and whether it has reached the level of being worthy of constitutional protection,on the one hand,we have to look at whether it belongs to the constitutional fundamental rights itself,and on the other hand,we also have to look at whether it belongs to the scope of protection of a certain fundamental right in the Constitution,even if it is not expressly stipulated in the Constitution,but as long as it is protected by the fundamental rights,it also belongs to the fundamental interests.When it comes to the conclusions of the filing review,the Legislative Affairs Commission uses the concept of fundamental rights and interests,to integrate fundamental rights and fundamental interests,equate fundamental rights with rights explicitly enumerated in the Constitution,and equate fundamental interests with interests protected by fundamental rights that are not expressed in the Constitution.Human dignity and harmonious and stable family relations are among the fundamental rights explicitly stated in the Constitution of the People’s Republic of China,and identity,privacy,and parent-child relations,although not enumerated in our Constitution,are still protected by the constitutional protection of human dignity and the family.In addition,since the unenumerated fundamental rights need to be deduced by constitutional interpretation,the expression of“fundamental rights and interests”has been used,probably given the difficulty of initiating a formal constitutional interpretation procedure.