公共利益限制基本权利的逻辑

The Logic of the Limitation of Public Interest on Basic Rights

以公共利益作为基本权利的限制是各国宪法之通例 ,“公共利益”和“法律保留”分别构成了限制基本权利的实质要件和形式要件。对于公共利益和基本权利的关系 ,有两种不同的理解 ,即“外在限制说”和“内在限制说”。“内在限制说”的危险性较之“外在限制说”为小 ,但其可能提供的权利保障范围也小于“外在限制说”。而且 ,“内在限制说”有着为严谨的法学学理所不能容纳的逻辑问题。故而 ,可以采纳的学说仍然是“外在限制说” ,但是必须通过确定一定理念与规则去消除其危险性 ,也就是对“公共利益”作出严格的限制 ,对“权利的限制”进行限制。

It is a general rule of constitution in mostly countries that limit basic rights by public interest. Public Interest and law Reservation respectively make up the important condition of substance and formality.There are two different understanding on the relation between public interest and basic rights ,they are the Theory of External Limitation and the Theory of Internal Limitation . The later is not more dangerous than the former ,but the scope of ensuring rights supplied by the later is also less than the former. Moreover, the later has many logic problems that can not be tolerated by law science theory. As this result,we should stand for the Theory of External Limitation ,and at the same time, must remove its danger through setting up some notion and rule .