A Research on the Principles at the Derogation of Public Officers’ Human Rights
|Course||Constitutional and Administrative Law|
|Keywords||Civil Officer Human Rights Constitutional Rights Limitation(restriction) Derogation|
The organization of public authority consists of individuals. Problems that control thepublic authority and promote to realize public goal, relate to its members’ rights andobligations. In other words, under the operation of public power in the legal norms and itsregulation, the structure of their rights and obligations has certain characteristics. Publicofficers are the persons, authorized by public law to control and manage public interests,and to fulfill the statutory public duty. Because their special duty is set according to publiclaw, public officers’ individual or general civil rights have got the corresponding restrictionand derogation.Based on the theory of law, law derogating norms, specific content of rightsderogation is narrated according to the human rights based on pedigrees on derogationconfirmed by international convention. And the common experience leading a relief path inderogation action is given. The contract ethics of public law, the basic theory of power andrights, the theory of interest balancing are important theoretical bases for the derogation.The basic ethics of public contract is put forward from the dimensions of officers’obligation and the protection of the rights of the public. General authority relationship inthe context of rights norms as well as in the theory of constitutional order, subjects to theconstitution and common laws; while the theory of inner managing authority relationship isadvocated in the specific category of the basic rights of public officers to be derogated.Then the author puts forward, that the inner managing authority relationship should beturned into the path to the special constitional and legal relation. Based on the officers’obligations of the identity and attributes as the rights to be derogated, inner managingpower should not violate the general authority relationship in the context of constitutionalrights and spirit. Under the authorization in accordance with the constitution, the innerderogation of the rights may obtain legitimacy. Balancing theory of legal interestsproposed in this article focuses on legislation, law applicable to civil servants or officers, while its way of realization of the balance in conflicts between their rights and legitimaterights of the public, needs making the necessary restrictions and reasonable concessions,which is also an important theoretical basis for the rights’ derogation of public officers. Inthis paper, focusing on the rights’ derogation of public officers summarizes characteristicsof specification of different status and identity, confirming the theory in "derogations"reality from the legal text dimension. Legal text specification of the identity of any conductof a public servant or an officer shall divide: on the one hand, a public officer is the mainbody of human rights and his civil rights, legal rights are protected; on the other hand,public officers’ or public servants’ ethics law, as anti-corruption law or regulations,emphasizes the equal rights and responsibilities, and objectively affects the category of theways to achieve or realize the rights, even detract from the rights of civil officers as acitizen status in constitutional rights and human rights background.In this paper derogating the content of rights is mainly narrated. In the economic andsocial rights, as well as political rights and human dignity rights based on the pedigrees andclassification of the charter of human rights, such significance, necessity, limits, theoreticalrules are issued as the derogations of the rights and interests of public officers analyzed,norms focused and normative judicial precedents narrated to be auxiliary on the problemabout "how to derogate". In addition, the problem of punishment and its authority review,as well as remedy path also leads to the necessity, legitimacy, appropriation of thederogation. No relief, no right. Only the case that one obtains relief path, one has the truerights; only to improve human rights protection system in the country at any dispute causedby authority management on disposal of interests, one may resort to effective relief path,which is also the important reason for a certain length, mosaic narration at the problems ofderogation disposed of the legal relief path on the topic of the paper.Based on the above discussion, this paper points out the actual problems in today’sChinese officers’ economic and social rights, political rights, human dignity rights andother interests, while putting forward the process of rule of law and the correspondingstrategies on specific topic and difficulties about it.