| Article 51 of Constitution acts as the general provision of fundamental rights, due to the short of relevant provisions about the Limiting the Limitation of rights, tends to aim at restraining the rights. It means that we are not allowed to harm the interests of the state, society and the collective, therefore the law is free to restrict our freedom. As a result of these understanding, the provisions of the Constitution on the fundamental rights has become dead letter.Both as the general provisions of fundamental rights, Article 51 and the third section of 33 st article of Constitution are different in the definition of obligations. Article 51 sets a relative obligation to the right without a clear legal provision. Refer to other countries and regions, Prohibition of abuse of rights and Restriction of rights are defined in different provisions, Article 51 of Chinese Constitution contains the double meaning, leading to the restriction of power. Drawing on the law of Germany on Law Reservation according to the fundamental rights of different terms, Article 51 acts as the authorizations provisions to terms which are not clear for the application of Law Reservation and Prohibition of abuse of rights. But Article 51 is equally binding on the terms under law reservation as they must follow its instructions. Article 51 applies to all the provisions of rights except fundamental rights reserved to the Constitution and the rights could not be restricted.From the perspective on implementation of the Constitution, Article 51 is only designated fairly to flexible framework, only when it is combined with the terms and conditions of the fundamental rights can it shows clearer outline. However, interpretation of infringe is the key to understanding Article 51. With the analysis of political freedom implementation status, we find out that Article 51 acts as a specific mean of declaring principles and legislation. Take the freedom of assembly as an example, legislators take licensing system to prevent damage, and to set the limited measures in accordance with its understanding of the damage.The existing problems of Article 51 mainly embodied as two aspects, on the one hand: Restraint of rights without legal basis which are made by the representative organs; Imbalance between power and right; Arbitrary interpretation of infringe and soon on. On the other hand: Collective interests take precedence over individual rights; Absence of restriction of powers; Narrow scope and confused definition of rights. All in all, the focus of the implementation of Article 51 lies in how to understand the border and limiting the limitation of the rights.To improve the fundamental right guarantee system, we should explain Article 51 restrictions on the fundamental rights with the constitutional spirit, and enrich it with the national security obligations and the limits of power. In a word, the pursuit of the balance of Fa Quan is the essence of Article 51 of the constitution. The balance of Fa Quan requires for triple balance between power-right, power-power and rightsrights, so legislation in legal power disposition should not to certain rights superiority, but to enhance the interests of society as a whole and then expand and safeguard the interests of the individual as a guide.Combined with the constitutional practice all over the world, the exercise of power must accept the principle of proportionality test. In our country, relying on Article 51 of the Constitution, especially the interpretation of the word infringe upon, the principle of proportionality can find the standard basis. In regulations for the record review and constitutional supervision, with objective constitution, appropriateness, necessity and equilibrium of the refinement of the system of rules, in Article 51 of the constitution applies to appropriately deal with the relationship between means and purpose, between the maintenance of public interests and guarantee the individual rights of citizens to achieve balance. |
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