Social Sciences in China (Chinese Edition)

No. 12, 2023

 

The Formation and Structure of the Statutory Reservations of Fundamental Rights in the Chinese Constitution

(Abstract)

 

Chen Peng

 

The statutory reservation of fundamental rights is not a restriction on administrative power, but a directive and constraint on legislative power. From the perspective of the transformation of the functions of the Constitution, the formation and evolution of constitutional texts, and the development of the implementation mechanisms of the Constitution, it is necessary to change the angle of examination and scrutinize the statutory reservation of fundamental rights in the current Chinese Constitution from a normative dimension. The text of the Constitution adopts the structure of differentiated statutory reservations, including simple reservations, qualified reservations, non-reservation, content-forming reservations, and the special circumstances of the articles on property rights. The history of the formulation of the Constitution indicates that Article 51 of the Constitution does not constitute an obstacle to the structure of differentiated statutory reservations; Article 51 defines the reasons for restricting unreserved fundamental rights. This can be interpreted in a limited way, making possible the application to fundamental rights with simple and qualified reservations and simultaneously highlighting the normative significance of differentiated reservations and avoiding the hollowing-out of fundamental rights protection. The structure of differentiated statutory reservations can also provide guidance for resolving conflicts of fundamental rights and distinguishing the standards for constitutional review.