应急状态下公民基本权利限制问题研究

摘要

应急状态下国家权力特别是行政权力往往会延伸至通常属于公民自治的领域，触发人们对于公民尊严与社会福祉的思考，权力与权利这对张力关系进入公众讨论视野，在宪法框架内重新理解这对张力关系对于推进我国国家治理能力和治理体系现代化具有重要意义。应急状态下公权力相比于常态下有所扩展，公民基本权利需要做出相应让步，主要表现为权力行使主体的扩大、权力行使内容的扩展以及公民自由权、隐私权、财产权等基本权利的限制。基于对人性善恶、权利性质、公私权益等的合理考量，应急状态下国家权力限制公民基本权利有其正当性根源。但为了避免公共权力的过度行使和公民权利的过分缩减，应当将公权扩张和权利限制控制在一定限度之内。明确这一界限是构建应急状态法治体系的前提和核心。应依据法律保留原则提供权利限制的依据，以不得侵犯本质内容原则划清权利限制的范围和底线，以比例原则规范权利限制的程度，为公权扩张提供明确而有效的法律指引，使其在法治轨道内有序运行。

Abstract

In emergency situations, state power, especially administrative power, often extends to areas that usually fall under the autonomy of citizens, triggering people's thinking on the dignity of citizens and social well-being. The tension between power and rights has entered the field of public discussion. Re-understanding the tension between power and rights within the framework of the Constitution is of great significance for promoting the modernization of China's national governance capacity and governance system. Compared with the normal state, the public power in the emergency state has expanded, and the basic rights of citizens need to make corresponding concessions, which are mainly manifested in the expansion of the subject of power exercise, the expansion of the content of power exercise, and the restriction of basic rights such as civil freedom, privacy, and property rights. Based on the reasonable consideration of the good and evil of human nature, the nature of rights, public and private rights and interests, the state power to restrict the basic rights of citizens in the emergency state has its legitimate root. However, in order to avoid the excessive exercise of public power and the excessive reduction of civil rights, the expansion of public power and the restriction of rights should be controlled within a certain limit. Clarifying this boundary is the premise and core of building the emergency rule of law system. It is necessary to provide the basis for the limitation of rights according to the principle of legal reservation, to define the scope and bottom line of the limitation of rights according to the principle of non-infringement of essential content, to regulate the extent of the limitation of rights according to the principle of proportionality, to provide clear and effective legal guidance for the expansion of public rights, so as to make it run orderly within the orbit of the rule of law.

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