论人权的行政保护

Administrative Protection of Human Rights

人权悖论在于行政主体不仅是人权义务的主体,有时也是侵害人权的来源。人权需要行政保障,行政也要受到人权规制。行政主体与行政相对人关系,实质上是权力与权利的关系,人权与行政保护有了人权法原理的元点关联。行政主体在行政过程中,履行人权义务是保障人权的刚性要求。依"三代人权"理论,"三代人权"在行政过程中的义务各有不同。行政主体在行政过程中动态地把道德义务、法定义务与实有义务三种类型的国家人权义务及时转化,是证成国家权力正当性的来源。对人权的行政保护义务,因此从学理上具有了合法性、合理性、正当性的基础。行政保护中的人权保障与人权司法保障是一个问题的两个面相,前者是指实体人权范畴,后者是指人权程序诉权。当人权受到侵害行政行为的侵害时,应为公民提供人权司法保障救济,以便有效纠偏人权的侵害,落实宪法人权条款。

It is paradoxical that the administrative body is not only the protector of human rights but sometimes the source of the infringement of human rights as well. Human rights need administrative protection, which is in return subject to the respect and protection of human rights. The relationship between the administrative body and its counterpart is essentially the relationship between power and rights, which forms the legal basis for the administrative protection of human rights. To fulfill the obligation to protect human rights is the rigid demand on the administrative body in its activities. However, such an obligation varies with different concepts of human rights described by the theory of "xthree generations of human rights". The source of the legitimacy of state power comes from the administrative body's effective fulfillment of and dynamic transformation between the three types of obligations (i.e. moral, legal and real obligations) to protect human rights. Thus, the administrative protection of human rights is based on a just, legitimate, and reasonable foundation. The administrative and the judicial activities form the two sides of the same coin of human rights protection: the former focuses on the substantive human rights and the latter on those in judicial procedures. When such rights are harmed by the administrative bodies, citizens should be offered judicial safeguards and relief so that the harm can be remedied and the provisions concerning human rights in the Constitution can be implemented.