基本权利的双重性质

在德国的宪法理论中,基本权利被认为具有“主观权利”与“客观法”的双重性质。除了作为个人权利的性质外,基本权利被认为是德国基本法所确立的“客观价值秩序”,是对国家权力产生直接约束力的法律。这一理论构成了对基本权利的宪法解释的基本框架,在此基础上,德国建构了一套严密的基本权利保障体系。这一理论对中国宪法的基本权利问题具有借鉴意义。

German constitutional theory posits the dual character of fundamental rights: as subjective rights and objective law. Besides the character as individual rights, fundamental rights are also the 'objective order of values' which were established by the Basic Law for the Federal Republic of Germany. As objective values, the fundamental rights bind the public authority as directly enforceable law. This theory became the basic interpretative frame of constitutional rights. Based on this theory, Germany found an effectual guarantee system of fundamental rights. This article tries to give a comprehensive analysis of this theory, and tries to apply this theory to China's reality.