论公序良俗对宪法权利的保护——以宪法实施的私法化为视角

宪法实施的私法化,是通过将民法上的公序良俗具体化,使宪法权利包含的法律的基础价值准则作为公序良俗原则的重要成分,进而将私人之间侵害宪法权利的法律行为视为违反公序良俗的行为,从而对法律行为的效力判断产生影响。由于公序良俗条款含义的包容性以及宪法与民法的关系尤其是宪法权利的特点,决定了公序良俗条款发挥宪法实施的私法化的桥梁和媒介的作用,是宪法权利及价值纳入私法领域不可或缺的具体路径。我国宪法第51条和民法通则第58条之间的共同性,使宪法权利私法化不仅具有宪法上的依据而且具有实行的条件。

On Protection of Public Order and Kind Custom for Constitutional Rights--Viewpoint of Application of the Constitution as Private Law

Application of the constitution as private law is that the public order and kind custom is embodied in the civil law, and become the basic value standards included in constitutional rights as the important parts of public order and kind custom, then the uristic act including torts between civil persons is looked as the act breaching the public order and kind custom, so it produces the influence to the effect of law juristic. Since the permit of act of public order and kind custom and the relation of civil law and constitution ,especially, character of constitutional law, determine that the act of public order and kind custom play the role in bridge and medium of application of the constitution as private law and is importantly concrete path to the constitution rights and values private law. The common between China Constitution 51st act and Civil Code make application of the constitutional rights as private law have provision in the constitution and condition practically.