我国宪法上通信自由和通信秘密保护条款的内涵重释——对“加重的法律保留”的限制性解释

Rethinking the Article of the Constitution of the People's Republic of China on Freedom and Privacy of Communication:Interpretation of the Restriction on"Upgraded Reservation of Law"

我国《监狱法》第47条关于监狱检查以及扣留罪犯信件的规定,从外观上看似乎与《宪法》第40条的表述不符,且在实践中诸如“法院调取通话记录”情形中的合宪性问题亦引起了学界广泛热议,学者们结合各种理论学说针对《宪法》第40条或一般性法律条文提出了修改建议或各种解释进路,却忽视了法律条文本身的独立价值(即论证性商谈)与具体场景中所适用条文的选择(即运用性商谈)之间的差异。“交警查手机”“法院调取通话记录”,以及《监狱法》第47条对罪犯通信权的限制性规定这三大实例虽然都有着各自问题的特殊性,但亦有着逻辑上的共性,即首先需要认识到加重的法律保留即“限制的限制”在具体场景中并非完全缺乏限制,进而才能在条文的具体适用中探寻出一个合适的对加重的法律保留加以限制的解释方案。如,就《监狱法》第47条的合宪性问题而言,应将对条文制定目的,以及对该条文与基本权利条款之间的实质关系(而未必是严格的逻辑关系)的分析相结合。

Article 40 of the Constitution of China provides that"except in cases necessary for national security or criminal investigation,when public security organs or procuratorial organs shall examine correspondence in accordance with procedures prescribed by law,no organization or individual shall infringe on a citizen's freedom and confidentiality of correspondence for any reason."This has long been regarded as a constitutional restriction on the capability of the legislature to enact laws to constrain the freedom and privacy of communication,i.e.an"upgraded/special reservation of law","limitation to limitations".Such reservations,in the context of fundamental rights protection,demonstrates a tendency of extremism and over-expanded interpretation.In practice,such situations as"traffic police checking mobile phones","courts investigating phone records"and"prisons checking the communications of criminals",in which members of public authorities check the communications of citizens or special groups for the purpose of public administration,have been defined by many views as violations of fundamental rights.Of course,there are also proposals in the academia to amend and improve Article 40 of the Constitution;at the same time,there are views that try to reconcile the constitutional power of the legislature to intervene in fundamental rights with the restriction on its intervention in fundamental rights,such as"this is not inspection,"the hierarchical construction of the "content of the communication" and the relatedinformation on the "content of the communication," and the expanded interpretation of"national security or the need to investigate criminal offenses."On the whole, in the view of the majority of the current academia, the local lawsand regulations based on which "traffic police check mobile phones," Article 70 of theCivil Procedure Law based on which "the court investigates the phone records", andArticle 47 of China's Prison Law on the inspection of prisons and even the detention ofcriminals' letters are all in conflict to a certain extent with the formulation of Article 40of the Constitution. The conflict can only be reconciled by amending the article or byexpanding the interpretation of some of the terms used therein. However, this ignoresthe difference between the constitutionality of the article and the constitutionality ofthe application of the article and treats the articles that are independent of each otheror intersect with each other in specific scenarios as a conflict of norms. In fact, theindependent value of the articles (i.e., argumentative negotiation) and the choice ofthe articles to be applied in specific scenarios (i.e., applicability negotiation) are twodifferent dimensions of the problem.The three examples of "traffic police checking mobile phones," "courtinvestigating call records," and the restrictive provisions of Article 47 of the PrisonLaw on the communication rights of criminals, still have something in commonlogically, although they all have their own particularities. First, it should be recognizedthat upgraded reservations, i.e., "limitation to limitations," are not absolutely unlimitedin specific cases and that a suitable interpretation for limiting upgraded reservationscan be found in applying the articles. As far as the constitutionality of Article 47 ofthe Prison Law is concerned, it is essential to combine an analysis of the purpose ofthe article with an analysis of the substantive (and not necessarily strictly logical)relationship between the article and the fundamental rights articles.