论我国宪法基本权利私法效力的确立和实现

On the Establishment and Realization of the Effectiveness of Constitutional Basic Rights to Private Law

在传统宪法理论中,宪法只以国家权利作为约束的对象,宪法基本权利条款不能适用于私法领域,但是,现代德、美等国家宪法理论将宪法效力逐步向私法领域拓展,反映了现代宪法发展的普遍趋势。在我国,长期以来由于受两个司法解释的影响,宪法基本权利的私法效力一直没有得到重视。随着宪政的发展以及宪法价值理念的转变,宪法基本权利的私法效力才开始在理论和实践中得到发展。这些为我国宪法基本权利的私法效力的实现提供了很好的借鉴,同时也给我们的司法实践提供了理论依据。

In traditional constitutional theory, the constitution takes the rights of the State as the only constraint object, and the constitutional provisions of fundamental rights cannot be applied in the field of private law. However, nowadays in German and American Constitutions, the constitutional validity is gradually extended to the field of private law, which shows the development trend of modem constitutions. In China, influenced by the two judicial interpretations, the effectiveness of the basic constitutional rights to private law has not been taken seriously. With the development of constitutional government and the changes of constitutional value, the effectiveness of the constitutional basic rights to private law began to develop in theory and practice, which is referential to the realization of the effectiveness of the basic rights to a third party in China, and can provide a theoretical basis for our judicial practice.