方法与目标:基本权利民法适用的两种考虑

Method and Purpose:Considerations of Fundamental Rights Exercised under Civil Law

基本权利既是主观权利,又是客观规范,具有第三人效力。将基本权利适用于民法,目的在于通过民法保护尚未被民法确立的基本权利。此种保护方法为"基本权利第三人间接效力说"。基本权利规范不宜直接作为民事判决依据,宜透过公序良俗、一般人格权等概括条款间接作为民事判决的说理依据。而通过民法保护并可作为民事裁判说理依据的基本权利有平等权、自由权、人格权及部分社会性基本权利。

Fundamental rights are deemed subjective rights as well as objective norms, having third party effect （Drittwrirkung）. To exercise fundamental rights under civil law is to protect some fundamental rights that have not yet been expressly ascertained by civil law. Such a protection is called the doctrine of third party indirect effect of fundamental rights. Fundamental rights norms seem unfit to be directly invoked as authorities in civil proceedings, but can be applied indirectly as a sort of persuasive authorities through public order and good morals, and general provisions such as general personality right. The fundamental rights that can be held as persuasive authorities in civil proceedings through protection of civil lawinclude equality, liberty, personality and some social fundamental rights.