未成年人权利规制:正当性、泛化隐忧与原则重申

The Restrictions on the Rights of Minors:Legitimacy,Concerns on Generalization and Principles Reiteration

对未成年人进行妥当的法律保护需要拨开笼罩在形式保护路径上的实质限制疑云。在当前法律框架下,未成年人的政治权利、人格权利、人身自由、社会经济和文化权利等受到部分规制。与成年人权利规制理论扎根于公共利益维护和主体权利共存不同,未成年人权利规制并未通过立法程序实现群体规制承诺,并且在一定程度上存在立法民主性、程序性和裁量性难题。未成年人权利规制具有特殊样态,其理论基础、程序构造与限制期限均与成年人权利规制不同。但当前法律对未成年人权利规制存在泛化隐忧,必须严格遵循“最有利于未成年人原则”、法律保留原则、明确性原则和比例原则的要求,以检验规制范围和措施的正当性。

The proper legal protection of minors requires the removal of any doubts about the substantive restrictions that may be placed on the path of form protection.Under the current legal framework,minors'political rights,certain personality rights,certain personal freedoms,socio-economic and cultural rights,and rights related to Internet information are restricted to a certain extent.Compared to the restriction on the rights of adults,the restriction on the rights of minors has a unique pattern:first,the theoretical basis for the restriction on rights is different,and it does not take the protection of the public interest and the coexistence of inter-subjective rights as the first value;second,the procedural composition of the mechanism for the restriction on rights is more special,and since minors cannot directly participate in the legislative process,the legal restriction on their rights is a consensus judgment made by adults;third,the restriction on the rights attached to minors is more of a short-term restriction and does not have a long-term,consistent and dispositive character.The fact that minors cannot participate in the legislative process of restriction measures because of the restriction on their rights,although intended to protect minors,in fact,creates more constraints,which in turn leads to the lack of democracy,procedural incompleteness,and discretionary nature of the restriction on rights in the legislation.It is necessary to justify the restriction on rights in terms of both motivation and conditions.In terms of motivation,the restriction on the rights of minors is based on the judgment that minors lack sufficient capacity to act and also on the strict protection of minors;in terms of justification,the first precondition is to ensure that the interests of minors are maximized,that the principle of the legal reserve is strictly adhered to and that the scope of the restriction on rights is clearly defined,and that it complies with the principle of proportionality.In current times,there is a tendency for the restriction on minors'rights to be generalized,mainly in terms of the type,scope,and manner in which minors'rights are restricted.To avoid such generalization and to protect the rights of minors to the fullest extent,it is necessary to reaffirm the principle of the restriction on the rights of minors.Firstly,the principle of"most favorable to minors"must be implemented,and legal judgments must be made from the perspective of the minor subject;secondly,the principle of reservation of rights must be strictly adhered to,ensuring that the measures to restrict the rights of minors are established by law;thirdly,the principle of clarity must be complied with,ensuring that legislation restricting the rights of minors is precise;and lastly,the principle of proportionality must be strictly adhered to.The restriction on rights must choose the means that cause the least harm to minors,and a balance must be struck between the damage caused by the restrictive measure and the pursuit of the objective.