基本权利在特类民事行为领域的适用

Basic Rights Exercised in the Area of Special Civil Behavior

"特类民事行为"即指与国家公权力有关联的民事行为。它主要适用于给付行政领域,可以分为两种类型:其一,国家以私法主体身份所为的民事行为,具体可以分解为3种形式。该类行为必须受到基本权利的限制,但这仅仅指向于其中的行政私法行为。而且,基本权利对该种行为的适用与对传统高权行政行为的适用不同,前者具有明显的层次性。其二,私人在传统公共行政领域所为的私法行为。该行为属于"公共行政民营化"中的第3种形式,即"实质民营化",主要集中在给付行政领域。该类行为要受到基本权利的约束。而且,应该受到法律保留原则的约束,但是,法律保留原则在该领域的适用和在秩序行政领域的适用具有本质的不同。

While addressing the impact of basic rights upon civil behavior, one can classify civil behavior as the “pure civil behavior” and the “special civil behavior,” i. e. , the civil behavior connected with exerting of state public power which is mainly found in service administration. In terms of basic rights, liberty and social right are both available in the ambit of service administration but of distinct natures. This special civil behavior comes in two variants. One is what the state behaves in the capacity of a private law agency which is composed of three forms. While such a kind of behavior is subject to basic rights, it only concerns with administrative private law behavior. Further, the application of basic rights to this category of behavior is quite different from that to the traditional high-power administrative behavior, for the former bears out an obvious color of hierarchy. The other sort of special civil behavior refers to those private law acts done by individuals in traditional public administration domain, which fall within the scope of the third form of “privatization of public administration,” i. e. , “substantive privatization” mainly concerning service administration. This kind of behavior is subject to basic rights as well as reservation of judicial review. The application of the reservation principle in this area,however, differs in nature from that in the administration area of order maintenance.