Principles, Rules And Application Of Fundamental Obligations Of Citizens

Nearly 67 percent of the countries stipulate the provisions about the fundamental obligations of citizens in the Consititution. Hence it can be said safely that the fundamental obligatons of citizens is an important element of the Constitution. Especially in China, the system of fundamental obligations of citizens is based on the Marxism principle"the rights consistent with obligations" which is rich with strong socialist characteristics. Compared with other countries, the fundamental obligations of citizens have always been an essential concept and important issue in the Constitution of China. However, this important constitutional element has not been given enough attention from domestic and abroad constitutional scholars which leads to extent, scope and quality of research on the issue still falling far short of the level of research on other constitutional issues. Some important theoretical and practical issues in the field of the fundermental obligations of citizens have not yet been adequately addressed, mainly including the connotation and extension of the fundermental obligations of citizens, the theoretical basis for the provisions of the fundermental obligations of citizens, constitutional functions and application of the provisions of the fundermental obligations of citizens. The author believes that exploring the essential issues of the fundermental obligations of citizens should be at first solved to highlight the existing value and importance of the fundermental obligations of citizens. This article focus on analyzing justification as well as function of application of the fundermental obligations of citizens through analying deeeply the connotati on and extension of the fundermental obligations of citizens, then figure out, fundermentalally,the value issues on the fundermental obligations of citizens in both theoretical and practical aspects.The article makes use of the methods of analyzing history, the methods of analyzing compare, the methods of analyzing rule, the methods of studying document and the methods of analyzing case and so on,and probes many therorical and practical problems of fundermental obligations of citizen. The article is divided into five parts:The first part is about the elementary theory of the fundamental obligations of citizens, mainly discussing the concept and fundamental attributes of the fundamental obligations of citizens, and the relations between the fundamental obligations and rights of citizens. The fundamental obligations refer to the essential obligations every citizen must perform to safeguard the existence and development of nation, and to safeguard the interests of the society, which are provided by the constitutional law. The fundamental obligations are obligations necessarily stipulated by the constitutional law, but not all the obligations provided by constitutional law are fundamental obligations. The purpose of the fundamental obligations can be divided into two aspects according to the different stages of their development:to safeguard the existence and development of nation, and to safeguard the interests of the society. The fundamental obligations stipulated in constitutional law are not the roots of all the citizen obligations; the relevant provisions cannot be applied to citizens directly. The subjects and objects of the fundamental obligations are not limited to citizen and the nation; their subjects include legal persons and other organization, their objects can expand to families and the society. The fundamental attributes of the fundamental obligations of citizens involve public, national, essential, demonstrative, open, universal, particular, mandatory and applicabable. The fundamental obligations do not involve the limitation of the fundamental rights of citizens, concretely speaking, to limit the fundamental rights do not belong to the fundamental obligations, we cannot infer that citizens undertake fundamental obligations from the limitation of their fundamental rights.To perform the fundamental obligations of citizens could result in the limitation of the fundamental rights of citizens.The second part is about the theory of citizens’ fundamental obligations, mainly describing theoretical basis for countries establishing its own fundamental obligations of citizens, basing on that, argues the validity and constitutional function of those obligations. The theoretical basis includes the Constitution of France in 1795 basing on theory of social contract, the Weimar Constitution of Germany in 1919 basing on national philosophy, the Fundamental Action of Germany in 1949 basing on the theory of citizens’ fundamental rights, and theory of socialist countries basing on "Marxist Principle of coordination of rights and obligations". Although these theories were rational at the very beginning of the enforcement of Constitution, they appear somewhat defective with the social development. The main reason for setting up fundamental obligations of citizens in constitution is its intimate relationship with national power and the fundamental rights of citizens. In details, the fundamental obligations of citizens protect the existence and development of the national power, by which, the implementation of the fundamental rights of citizens may also be insured. Meanwhile, articles about citizens’ fundamental obligations may limit the national power in order to protect citizens’ fundamental rights. In particular, the fundamental obligations of citizens may directly guarantee the realization of the citizens’fundamental rights while supervise the implementation of the national power. Accordingly, the existence of the citizens’fundamental obligations acquires its theoretical value and significance. In sum, the fundamental obligations of citizens may have various constitutional functions, such as limiting national power, protecting citizens’fundamental rights, supervising the implementation of the national power, constituting the basis for realization of the citizens’ social rights, providing grounds for reviewing over the constitutionality of the legal obligations, and being good for educating the citizens with the constitutional spirit.The third part is about the normaltive study of the fundamental obligations of citizens, mainly describing the historic development and the state of the existence of the fundamental obligation normalizations of citizens,and nanalyzes deeply the articles of the fundamental obligations of citizens provided in the Constitution of China. A great deal of nanalyzation and study about different country’s fundamental obligations normalization of citizens describes the fact that fundamental obligation normalizations of citizens exist in normaltive documents which include Constitutive code, law, constitutive precedents and others, but not being stipulated in constitutive law and international houman rights papers. The macro existence of fundamental obligations of citizens in Constitutive code includes three modes:being provided in independent chapter, in the same chapter with the fundamental rights of citizens, existed in different chapters. The micro existence of fundamental obligations of citizens in Constitutive code includes:independent existence and conbinative existence,recitals existence and imperative existence. The articles of county’s power and the qualifying clauses of fundamental rights of citizens do not include the fundamental obligations normalization of citizens,so which could not be the hidden existence of the fundamental obligation normalizations of citizens。The fundamental obligations of citizens in Constitution only exist in the articles of the legal obligations which include the obligations of observing Constitution, the obligations of observing law, the obligations of paying taxes,the obligations of military service,the obligations of civic education and the obligations of protecting environment.There are many special kinds of constitutionally fundamental obligations of citizens,such as the obligations of electing, which stands for special situation,history and civilization of the countries.The fundamental obligation normalizations of citizens provided by the constitutional law have been very different between the old China and the building of new China since the Constitution drafted in Qing dynasty,and some special kinds of obligations had appeared, such as the obligations of working for the government, the obligations of working for the public, the obligations of public duty, the obligations of obeying the government. Considering the fundamental obligation normalizations of citizens provided by current constitutional law which is rich with strong socialist characteristics and morality,to stipulate the content of the obligation normalizations must be very careful and diligent.The fourth part is about the application approach of the civil fundamental obligations, mainly elaborating on the fundamental principles of legislative application, administrative application and supervision application of the civil fundamental obligation clauses in the constitutional code and on the factual application in China. Legislative application plays a fundamental role in the application of the civil fundamental obligation clauses. When the legislative authority promulgates an act, the fundamental content and purpose of the act are limited by the civil fundamental obligation clauses. However, the legislative authority can decide the time to start to draft, and has certain discretion. When the legislative authority does not draft an act, public can seek remedy through constitutional petition, constitutional check, direct application and democratic political participation. Nevertheless, when the legislative authority does not promulgate an act related to the civil fundamental clauses, the public will not seek remedy. In our country, the legislative application of civil fundamental obligation clauses is relatively complete, except the obligation of paying taxes. The weak civil fundamental obligation clauses have weak binding force on the legislative authority. The administrative application of the civil fundamental obligation clauses refer to the situation that the administrative authority drafts an act according to the authorization of the legislative authority. The legislative authority can only authorize the administrative organs to draft the act under certain circumstances and the limitation should be more clear and rigid. When the administrative organs draft an act, they should conduct it according to the law and constitutional clauses, and should not exceed the authorization. The situation in our country is in utter disorder and need be improved at once. The object of supervision application of civil fundamental obligation clauses covers the law, administrative regulations and implementation measures. Supervision application should comply with the following principles:the necessity and irreplaceability of the establishment of the obligations and unacceptability of the limitation on rights. At present, there is no case of supervision application.The fifth part is about the specific application of the fundamental obligations of citizens. A great deal of precedents and examples described the situations of constitutional review in practice under constitutional articles which include the obligations of paying taxes, obligations of military service and obligations of civic education. This kind of constitutional review mainly refers to whether obligations of law enacted by legislation comply with the content and purpose of the articles of fundamental legislation obligations of citizens. Under normal circumstances, only the articles of fundamental obligations of citizens are relevant for the purpose of review and others provisions are needless. However, in some cases, because of legal obligations relating to civil rights limitations, and therefore requires a combination review of the fundamental rights of citizens. For example, under normal circumstances, the constitutional review is enough for the provisions of obligation of paying tax according to the principle of tax by law, fairness tax and proportionality of tax. But in cases of whether the tax obligation is an infringement of fundamental rights of citizens the reference of the terms of fundamental articles of civil rights is necessary. The constitutional review of obligations of military service and civic education is the same.