国家所有“权”之惑——基于国家“基本权利主体”资格角度的思考

The Bewilderment of the “Ownership of the State”——on the Basis of the Qualification of the “Fundamental Rights Subject” of the State

我国宪法基本权利主体包括公民这一基础性主体,以及法人、外国人等非典型基本权利主体。但基本权利主体均符合可辨识性和防御国家的私主体面向的双重特征。国家属于法律主体,但不宜纳入基本权利主体范畴,即便假设国家属于国家所有权的权利主体,也难以解决国家所有权不具备基本权利的防御功能、国家无法防御国家等悖论,且国家同时作为权力和权利双重主体地位会导致权力入侵权利领域。因此国家所有权应该寻求非基本权利的解释路径。

The subjects of basic rights in constitution of our country include citizen as the basic subject, as well as non-typical subjects of basic rights, such as legal persons and foreigners. But the subjects of basic rights accord with the dual characteristics of identifiability and the private subject of country-defense. The state belongs to the legal subject, but it should not be included in the category of subject of basic rights. Even assuming that the state is the subject of the right to national ownership, it is difficult to resolve the paradox that the state ownership does not have the defensive function of the basic rights and that the state cannot defend itself against the state. At the same time, as a dual subject of power and right, the state will result in the fact the power invade the field of rights. Therefore, state ownership should seek the interpretation of non-basic rights.