The Intervention Path of Fundamental Rights under the Scope of International Private Law

In recent years, international private law scholars have argued for the radiating effect of fundamental rights on international private law by introducing constitutional theory. However,there remains a lack of systematic research on how fundamental rights should be integrated into judicial practices concerning foreign-related civil and commercial cases. Throughout the development of international private law, public policy has served as a historical carrier of substantive values for judicial entities and has consistently played a crucial role in value review. In cases of international private law where conflicts arise with the values of fundamental rights, public policy indirectly excludes the legal choice outcomes to safeguard the human rights values inherent in fundamental rights from infringement.However, due to limitations imposed by the degree of connection and relative conditions, traditional paths of public policy have certain constraints and cannot provide comprehensive protection for fundamental rights. Therefore, there is a need for judges to shift their logical paradigms, transcend bilateral choice-of-law models, and introduce a direct intervention path for fundamental rights. This direct intervention path utilizes the logical analysis framework of the protection scope,intervention, and justification of fundamental rights. It can effectively balance conflicting legal interests and maximize the protection of the fundamental rights of the parties involved.

Unenumerated Rights Clauses and the System of Restriction on Fundamental Rights——Another Construction Plan for Article 51 of the Constitution of PRC

According to constitutional jurisprudence in China,Article 51 of the Constitution is an unenumerated restrictive clause.Such theoretical construction fails to justify the differentiated restrictions established in the Constitution and makes it difficult to explain the constitutional status of human dignity. Article 51 implies the possibility of other theoretical constructions. It is not an unenumerated restriction clause but an unenumerated rights clause. It aims to provide guarantees for general freedom of action not enumerated in the Constitution rather than restricting fundamental rights. The actual benefit of this kind of theoretical construction lies in that it can establish the basis of the constitutional text for general freedom of action and promote the people’s correct understanding of the model of restriction on fundamental rights established by the Constitution of PRC.

Research on the Constitutional,Historical and Practical Logic of the Chinese Path of Human Rights Development——From the Perspective of the Inclusion of Human Rights Clause in the Constitution

The inclusion of the human rights clause in the Chi-nese Constitution is a concern and expression of the spirit of the Con-stitution,which has laid the institutional regulations of the fundamen-tal law for the development of human rights in China,provided the principles and value norms of the highest level of effectiveness for the legal protection of human rights,and built a profound constitutional basis for the formation and improvement of the Chinese path of human rights development.The human rights clause is not only a summariza-tion and affirmation of the historical practice of Chinese human rights development under the leadership of the Communist Party of China,but also a new starting point for the development of human rights in China under the leadership of the Communist Party of China.It marks that the development of human rights in China has entered a new era.The Party and the state have finally embarked on a path of human rights development with Chinese characteristics by formulating and implementing the Human Rights Action Plan of China,eliminating ab-solute poverty through the national poverty alleviation campaign,and promoting human rights protection through the rule of law.

Clinical forensic imaging and fundamental rights in Austria

Clinical forensic imaging encompasses the diverse application of imaging procedures that serve the same purpose:to enable the analysis and investigation of criminal activities and consequences of a crime.All kinds of imaging techniques and their corresponding images can be subsumed under“forensigraphy”,a more comprehensive term for forensic imaging created by the Ludwig Boltzmann Institute for Clinical Forensic Imaging in Graz,Austria.As the word forensigraphy suggests,criminal imaging material should be of use in forensic investigations.Ideally,this can lead to new findings that would not have been revealed without the application of imaging techniques and are moreover admissible as evidence in criminal proceedings.However,the admissibility of evidence can only be facilitated through the implementation of clinical forensic imaging techniques into the forensic routine case work,which requires a precise pre-analysis of the corresponding legal framework.Because taking and displaying internal images of a person’s body touches upon various aspects of one’s physical and psychological integrity,imaging methods in general and clinical forensic imaging methods especially have a strong impact on and interfere regularly with the fundamental rights of the concerned person.Particularly with regard to a possible medical context,certain legal regulations have to be taken into account.Therefore,this paper examines forensic imaging in the field of radiological forensigraphy,specifically its in vivo(i.e.clinical)application.It is designed to enlighten readers as to the great significance of legal barriers that emerge from fundamental rights,as laid down in the European Convention on Human Rights(ECHR),when dealing with clinical forensic imaging.As a result,the legal framework of clinical forensic imaging procedures are comprehensively described,the relevant fundamental rights,especially the right to respect for private and family life,the right to data protection and certain procedural guarantees,are concisely presented to further raise awareness regarding the importance of fundamental rights.

FUNDAMENTAL RIGHTS IN THE DIGITAL ERA, HORIZONTAL EFFECT AND THE DISTINCTION BETWEEN ＂STATE＂ AND ＂SOCIETY＂ IN GERMAN AND EUROPEAN CONSTITUTIONAL THEORY

The article discusses the proposal for a ＂Charter of Digital Fundamental Rights of the European Union,＂ whose central element is a binding effect of its fundamental rights not only to state authorities, but also to powerful private intemet companies, which have a potential similar to that of the state to infringe on fundamental rights in the digital era. The article outlines the traditional German approach to fundamental rights and its underlying distinction between state and society, which makes it difficult for German scholars to handle a so-called horizontal effect of fundamental rights. Finally, the article discusses the main objections to such a horizontal effect and shows some practical problems it has the potential to cause in German and European constitutional law.

On the Principle of Consistency of Rights and Obligations in the Constitution of PRC

“The Fundamental Rights and obligations of Citizens”, the title of Chapter II of the current Constitution of PRC, and the stipulation that citizens must fulfill certain obligations while enjoying rights have triggered many debates. Considering the historical origin, constitutional philosophy, and the text and structure of the Constitution, the special provisions of the current Constitution are influenced by the principle of consistency of rights and obligations. The principle of consistency of rights and obligations in the Constitution is of complex connotation. Therefore, although the principle of consistency of rights and obligations effectively connects the public and private spheres, it ignores the diversity and differences of the interests and elements contained in the Constitution, the asymmetry of the normative status of fundamental rights and fundamental obligations,and the right of citizens to self-determination of personal interests.The principle of consistency of rights and obligations should be purposefully narrowed and concretized: In the context of public-private integration and risk society prevention, the principle of consistency of rights and obligations can be used as a supplement to the functional system of the Constitution;in the field of fundamental political obligations, the principle of consistency of rights and obligations should be in line with the requirements of the state to respect and protect human rights;in the field of fundamental social obligations, the exercise of fundamental rights by individuals is protected by the Constitution as long as they comply with the law and do not infringe upon the interests of the social community. The principle of the consistency of rights and obligations is only used as the negative constituents of the determination of rights and the basis for the effect against a third party of fundamental rights.

The“Erga Omnes”of the Protection of Fundamental Human Rights and the“Complementary Protection”of Refugees Not Prescribed by the UN Convention Relating to the Status of Refugees

The United Nations Convention Relating to the Status of Refugees 1951 and its Protocol in 1967 set Four Essentials to limit the definition of "refugee". The concept of complementary protection emerged in academia and practice for those who, though they do not have the essentials,are in need of protection. Complementary protection is considered not only a moral obligation, but also a legal obligation. Although as the result of developing the principle of "non-refoulement" in international law, "complementary protection" should be limited when economic and social rights are concerned. The development of the non-refoulement principle and the emergence of "complementary protection" are based on the Erga Omnes of human rights. The International Court of Justice has restricted the emergence and evolvement of obligations Erga Omnes within the scope of obligations concerning fundamental and non-derogable human rights, and therefore,the application of "complementary protection" in protecting economic and social rights has been limited. Only when the unbalance of economic and social rights has been serious enough to impact other fundamental human rights will the obligation of "complementary protection" ensue.

Basic Rights Intervention in the Obtainment of Digital Data as Evidence in Criminal Case——An Analysis Based on Six Typical Cases

Electronic data is the most frequently used evidence in the internet and information era.Electronic data has been applied extensively and can be classified into many categories,which determine that electronic data contains all kinds off undamental rights.To clearly understand the fundamental rights contained in electronic data is an important precondition for respecting and protecting human rights in electronic data evidence obtainment.Property-type electronic data contain property rights.Traditional investigation measures such as seizure and freezing the property cannot be taken to obtain valid evidence.To directly turn the digital currency into cash and then seize the cash,will result in insufficient property rights protection,and may violate other fundamental rights of criminal suspects.The expansion of the object of the right to privacy and the change of the carrier on which the expansion depends in privacytype electronic data,determine that the obtainment of the privacytype electronic data evidence may result in intangible intervention and secondary intervention in the right to privacy.Communicationtype electronic data contains freedom of communication and the right to communication secrecy.Investigative organs can collect this kind of electronic data through search,acquisition,remote investigation and examination,and other means.However,according to the existing institution design,the above-mentioned means may result in insufficient protection of freedom of communication.Expressiontype electronic data contains freedom of expression.If investigative organs collect this kind of data,they may intervene in freedom of the press though they do not intervene in narrowly defined freedom of expression.The basic principles that should be followed in the electronic data evidence obtainment which intervenes in fundamental rights include the doctrine of legal reservation,the writ system,the principle ofp roportionality,and illegal evidence exclusion.

Evolution of health law in Turkey

Turkey has always been one of the leading countries in the field of health and fundamental rights.Though Turkey is a member of many international organizations and a candidate state for the European Union,had some regulations on fundamental rights,patients rights and right to health,even before the international papers,such as the Universal Declaration of Human Rights,did not come into force.Turkey always follows closely to the new developments in health care technologies,that is why Turkey continues to be one of the most chosen countries in international health tourism.These improvements in health care drive Turkey to adjust its regulations related to patients'fundamental rights and right to access to health.In the 2000s,health law postgraduate programs were founded in some universities in Turkey.With these programs,research in health law has been accelerated.Turkey will be one of the leading countries in health law too in the next few years.In this study,we started with the fundamental sources of the right to health in Turkey;then we continued with current objects at issue in Turkish health law;then we gave place to the current problems of Turkish health law such as reproductive rights,problems related to organ and tissue transplantations,increasing numbers of legal cases against health care professionals,their possible solutions and the future expectations.

Dilemma of concepts and strategies for the prevention of spread of HIV in relation to human behavior,law and human rights

The new prevalence data regarding the estimated global number of human immunodeficiency virus positive (HIV+) cases,i.e.,including people who are either aware or unaware of their HIV infection in 2010,lead many to wonder why the increase in incidence has reached today’s unprecedented level and escalated within such a short time.This,in spite of prevention campaigns in countries affected by HIV/acquired immune deficiency syndrome (AIDS) with their urgent messages aimed at preventing HIV transmission by promoting changes in individual’s behavior.This article analyzes the background of the prevention strategies,in particular their political,social and legal concepts in terms of human rights,and reveals traits of human behavior not considered thus far.A radical reappraisal is necessary,at social and legislative levels,as well as options additional to current concepts.When ethical issues come up,they become blamed for outmoded moralistic positions.However,ignoring the reality has led to dire consequences from prioritizing individual human rights over society’s collective need to prevent the spread of HIV.

MAGNA CARTA AND THE FUNDAMENTAL RIGHT TO DUE PROCESS

The 800th anniversary of Magna Carta has been marked by much pageantry and celebration. Some scholars have taken this opportunity to point out that the myth of Magna Carta is far greater than what the actual 1215 Charter managed to accomplish. Nevertheless, Magna Carta did make a meaningful and concrete contribution to due process in 1215, as shown by certain provisions that are seemingly overlooked by critics eager to downplay the Charter＇s importance. This article highlights two lesser known clauses of Magna Carta that had real contemporary significance in guaranteeing the availability of jury trial for some categories of civil litigation. The ringing promises of Clauses 39 and 40 may have inspired great jurists and founders of nations, but the more humble Clauses 17 and 18 -- specifying the proper location and manner of hearing certain civil cases -- must also be taken into account in assessing the Charter＇s importancc.