基本权利的规范领域和保护程度——对我国宪法第35条和第41条的规范比较

Coverage and Protection of Constitutional Right:A Comparative Interpretation of § § 35 and 41 of Chinese Constitution

基本权利的规范领域和保护程度之间存在反比关系:规范领域愈宽,保护程度愈低;规范领域愈窄,保护程度愈高。我国宪法第35条规定的言论自由,其规范领域宽于宪法第41条规定的监督权,因此宪法对监督权的保护程度高于对言论自由的保护。基本权利对公权力裁量余地的限制,随着所涉及基本权利的不同而有所差异:公权力对言论自由的限制,需要提出充分的理由;对受保护程度更高的监督权的限制,需要提出更强有力的理由。宪法对监督权的高程度保护,体现了制宪者对民主监督的期盼和对民主建设的信心。

The coverage and protection of constitutional rights are logically different questions. Only when the conduct of individual falls within the coverage of constitutional rights, then the question whether the conduct is protected by the constitutional law arises. Thus, delineating the coverage of constitutional right is the threshold question implicit in every constitutional right case. There is an inverse relation between the coverage of constitutional right and its protection, that is, the less limited range of the coverage, the less protection awarded by the constitution, and the more limited range of the coverage, the more protection by the constitution. Because free speech is broader than criticism in ordinary meaning, the coverage of § 35 （free speech） of Chinese Constitution is broader than that of § 41 （supervision right）. Thus the constitutional protection of supervision right is higher than that of free speech. With the different protective degree for free speech and supervision right, the limitation on governmental discretion also differs. To limit supervision right which is highly protected, the exercise of governmental power must provide more compelling justification than to limit freedom of speech. The higher protection of supervision right embodies the purpose and intention of the framers of Chinese Constitution, that is, the expectation of democratic supervision and the confidence in democratic construction, which is the outstanding characteristic of socialist constitution.