On the Constitutional Protection of the Right to Equality

Author: Zhu Yingping
Publisher:
Publish Date: 2004-11-01
Features: The purpose of this book is to explore how to achieve constitutional protection of equal rights in China. The book studies the constitutional methods and judicial experiences of equal rights in countries around the world, especially in constitutional democracies, from a comparative perspective, and then proposes measures for China to achieve constitutional protection of equal rights. Based on comparative research on constitutional protection of equal rights domestically and internationally, four research findings are concluded. , a comparatively scientific concept of equal rights. Equal rights refer to the constitutional norm that requires state organs or dominant parties to bear the burden of proof for differential treatment, as confirmed or defaulted by relevant norms such as written constitutions, constitutional laws, human rights treaties, constitutional interpretations, constitutional judicial precedents, and constitutional customs. It is a unity of general equal rights and multiple specific equal rights. Its basic meaning is that citizens are equal in constitutional and legal status regardless of ethnicity, race, skin color, gender, language, occupation, political or other opinions, religious beliefs, property, place of residence, household registration, family, and other identities; they equally enjoy the rights and obligations stipulated by the constitution and laws, equally suffer penalties and receive judicial relief; it requires adherence to the principle of treating similar cases similarly and different cases differently; discrimination and unreasonable differential treatment may not be implemented without adequate justification. Second, a clear understanding of the interactive and balanced relationship between freedom and equality in political and constitutional theory, thereby guiding constitutional and judicial work. Third, a comparatively complete tripartite structure of equal rights norms, namely: the basic content of equal rights, including equality before the law, equality under the law, equal legal protection, equal legal interests, prohibition of discrimination, and opposition to privileges and personality cults; the subjects of enjoyment and enjoyment of equal rights, the subjects subject to restraint, the matters and types of constraints, and specific equal rights such as differential treatment; the restrictions on equal rights, including general and specific restrictions, and the limitation of restrictions and their limitations; and the safeguards for equal rights, including the provision of the supreme status of constitutional rights, direct legal effect, justiciability, binding effect, non-arbitrary legal restrictions or modifications, constitutional and judicial organs, and safeguard procedures. Fourth, feasible operational technical specifications for constitutional protection of equal rights: treating similar cases similarly, treating different cases differently; treating similar cases differently and treating different cases similarly; prohibiting discrimination; opposing arbitrary actions; allowing support for reasonable and justifiable differential treatment; applying different levels of review standards for different types of equal rights, reviewing whether the purpose of differential treatment or classification is constitutional, the degree of relevance between the means of differential treatment and the objectives to be achieved, and thereby determining whether equal rights are violated. Propose specific measures for constitutional protection of equal rights that are in line with China's national conditions. , theoretically recognize the extreme one-sided error of our country's past in emphasizing equality while neglecting freedom, absorb the spirit of restricting power in the introduction of the right to freedom, and introduce the right to equality to make it an equal right that includes negative functions. Second, according to the requirements of the normative structure of equal rights, modify and improve the provisions of equal rights in our constitution. Mainly includes: broadening the meaning of general equal rights, adding anti-discrimination provisions, supplementing freedom-related equal rights, supplementing reasonable justifications for differential treatment, modifying, supplementing, and adding restrictions on rights and safeguard measures. Third, learn from international experience to improve the ability of our legislative, law enforcement, and judicial organs to consciously legislate and enforce in accordance with the principles of constitutional equal rights norms; in order to improve the level of constitutional protection by constitutional organs, it is necessary to learn from international experience in four aspects, judge whether constitutional protection of equal rights can be applied in six aspects, and improve the quality of judges in three aspects. ǖɡ?