基本权利对第三人效力之重构--以合宪性解释的程式性理解为视角

Reconstructing the Effectiveness of Basic Rights Against the Third Party--From the Perspective of Procedural Interpretation of Constitutional Interpretation

基本权利对第三人效力问题,是处理宪法与民法关系时的首要问题。旧效力论没有区分情形,便单独适用直接效力说或间接效力说,难免具有片面性。新效力论以基本权利的客观价值秩序作为保护义务的宪法依据,以立法违宪审查基准体系为内核,对合宪性解释做程式性理解,并通过细化新效力论,使其具备可操作性,并克服片面性。中国语境下,新第三人效力论有相应的规范基础和理论基础。在宪民关系中,无效力说系“民法适用优先”的现象。“以间接效力说为主体、以直接效力说为补充”的新第三人效力论,可为依宪治国的实践提供有益的思想素材。

The issue of the effect of fundamental rights on the third party is the primary issue in dealing with the relationship between the Constitution and civil law.The old theory of validity does not distinguish among situations,so the direct effect theory or the indirect effect theory is applied alone,which is inevitably one-sided.The new validity theory takes the objective value order of fundamental rights as the constitutional basis of the protection obligation,takes the legislative unconstitutional review benchmark system as the core,makes a procedural understanding of the constitutional interpretation,and makes it operable by refining the new validity theory to overcome one-sidedness.In the context of China,the new third-party effect theory has corresponding normative and theoretical foundations.In the relationship between the Constitution and civil law,the theory of invalidity is a phenomenon of“civil law application priority”.The new third-party effect theory means that the indirect effect theory is the main body,and direct effect theory is the supplements.The new third-party effect theory can provide useful theoretical materials for the practice of governing the country according to the constitution.