我国紧急状态下公民基本权利限制与保护问题研究
发布时间：2018-08-30 11:49
【摘要】：紧急状态属于一种非常态的社会状态。通常在一个国家面临巨大危机，威胁国家和人民的安全时才会出现。当国家进入紧急状态后，国家权力会在一个较短的时内不断扩张、集中、强化，我们称这种权力为国家紧急权，而此时，与之相对的公民的基本权利会面临前所未有的威胁，而这种威胁是与我国的宪法精神相违背的。因此，怎样让这种紧急权力得到有效的行使，同时又与保护公民的基本权利的宪法精神相一致，就是笔者论述的关键。 本文采纳对比分析方法、实证研究方法、历史分析法等研究方法，对我国的紧急状态下公民基本权利限制与保护的相关问题进行分析与研究。本文研究的重点在于国家紧急权在紧急状态下怎样合法、合理的行使；国家紧急权对公民基本权利的限制的目的，正当性和必要限度；国家紧急权对公民基本权利的限制和保护之间的平衡等。本文创新点在于：在对紧急状态下对权利限制的目的、正当性、必要性的进行论述基础之上，笔者更注重对限制的限度即对限制的限制和限制与保护之间的平衡进行深度研究，并针对我国紧急状态下对公民基本权利限制与保护的相关制度问题提出了的建议。 论文通过介绍国外紧急状态下人权克减的制度研究对我国紧急状态下公民基本权利的限制与保护相关制度的构建和完善予以借鉴参考，并通过对目前我国紧急状态下存在的对公民权利的限制与保护所遇到的问题进行分析，提出相应的对策、建议，出台《紧急状态法》作为紧急状态下紧急权行使的统一法律依据，进一步完善相关法律体系，填补法律空白，规范紧急状态下紧急权的行使程序；构建紧急状态下的行政管理体制，设立专门的行政组织机构建立和完善紧急状态下公民基本权利的救济机制等。 基于以上的分析和论证，得出本文的结论：紧急状态下公民权利的限制与保护是我国宪法的基本要求，要保障公民权利真正由“应然”转为“实然”状态，并不受行政机关的随意限制或克减，就迫切需要我们出台《紧急状态法》作为紧急状态的统一法律依据；同时，在原有的紧急状态制度上进一步完善现有制度，，包括紧急状态下的行政管理制度、信息公开制度、公民救济制度等。
[Abstract]:A state of emergency belongs to an abnormal social state. It usually occurs when a country is facing a huge crisis that threatens the security of the nation and its people. When the state of emergency enters into a state of emergency, the power of the state expands, centralizes, and intensifies in a relatively short period of time. We call this power the emergency power of the state, and at this point, the fundamental rights of citizens as opposed to them will face unprecedented threats. This threat is contrary to the spirit of our constitution. Therefore, how to effectively exercise this emergency power, and at the same time consistent with the constitutional spirit of protecting the basic rights of citizens, is the key point discussed by the author. This paper adopts the methods of comparative analysis, empirical research and historical analysis to analyze and study the problems related to the restriction and protection of citizens' basic rights under the state of emergency in China. The focus of this paper is how to exercise the state emergency power legally and reasonably, the purpose, the legitimacy and the necessary limit of the state emergency power to the citizen's basic rights. The balance between the restriction and protection of the basic rights of citizens by the state emergency power. The innovation of this paper lies in: on the basis of discussing the purpose, legitimacy and necessity of the restriction of rights under the state of emergency, the author pays more attention to the limit of the restriction, that is, the restriction and the balance between the restriction and the protection, and carries on the deep research on the limitation and the balance between the restriction and the protection. Some suggestions are put forward for the restriction and protection of citizens' basic rights under the state of emergency. By introducing the system of human rights derogation in foreign countries, the paper makes a reference to the establishment and perfection of the basic rights restriction and protection system of citizens under the state of emergency in our country. Through the analysis of the problems existing in the restriction and protection of civil rights under the current state of emergency in China, the corresponding countermeasures and suggestions are put forward. Introducing the Emergency Law as the unified legal basis for the exercise of emergency power under a state of emergency, further improving the relevant legal system, filling the legal gap, and standardizing the procedure for the exercise of emergency power under a state of emergency; The administrative management system under the state of emergency and the special administrative organization should be set up to establish and perfect the relief mechanism of the citizens' basic rights under the state of emergency. Based on the above analysis and argumentation, this paper draws the conclusion that the restriction and protection of civil rights under the state of emergency is the basic requirement of the constitution of our country. It is not subject to arbitrary restrictions or derogations from administrative organs, so it is urgent for us to issue the Emergency Law as the unified legal basis for a state of emergency. At the same time, we should further improve the existing system on the basis of the original state of emergency system. Including the state of emergency administration system, information disclosure system, civil relief system and so on.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
[Abstract]:A state of emergency belongs to an abnormal social state. It usually occurs when a country is facing a huge crisis that threatens the security of the nation and its people. When the state of emergency enters into a state of emergency, the power of the state expands, centralizes, and intensifies in a relatively short period of time. We call this power the emergency power of the state, and at this point, the fundamental rights of citizens as opposed to them will face unprecedented threats. This threat is contrary to the spirit of our constitution. Therefore, how to effectively exercise this emergency power, and at the same time consistent with the constitutional spirit of protecting the basic rights of citizens, is the key point discussed by the author. This paper adopts the methods of comparative analysis, empirical research and historical analysis to analyze and study the problems related to the restriction and protection of citizens' basic rights under the state of emergency in China. The focus of this paper is how to exercise the state emergency power legally and reasonably, the purpose, the legitimacy and the necessary limit of the state emergency power to the citizen's basic rights. The balance between the restriction and protection of the basic rights of citizens by the state emergency power. The innovation of this paper lies in: on the basis of discussing the purpose, legitimacy and necessity of the restriction of rights under the state of emergency, the author pays more attention to the limit of the restriction, that is, the restriction and the balance between the restriction and the protection, and carries on the deep research on the limitation and the balance between the restriction and the protection. Some suggestions are put forward for the restriction and protection of citizens' basic rights under the state of emergency. By introducing the system of human rights derogation in foreign countries, the paper makes a reference to the establishment and perfection of the basic rights restriction and protection system of citizens under the state of emergency in our country. Through the analysis of the problems existing in the restriction and protection of civil rights under the current state of emergency in China, the corresponding countermeasures and suggestions are put forward. Introducing the Emergency Law as the unified legal basis for the exercise of emergency power under a state of emergency, further improving the relevant legal system, filling the legal gap, and standardizing the procedure for the exercise of emergency power under a state of emergency; The administrative management system under the state of emergency and the special administrative organization should be set up to establish and perfect the relief mechanism of the citizens' basic rights under the state of emergency. Based on the above analysis and argumentation, this paper draws the conclusion that the restriction and protection of civil rights under the state of emergency is the basic requirement of the constitution of our country. It is not subject to arbitrary restrictions or derogations from administrative organs, so it is urgent for us to issue the Emergency Law as the unified legal basis for a state of emergency. At the same time, we should further improve the existing system on the basis of the original state of emergency system. Including the state of emergency administration system, information disclosure system, civil relief system and so on.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.1
【参考文献】
相关期刊论文 前10条
1 曾哲;;民生至上:紧急状态下的宪法视角[J];法治论坛;2008年01期
2 李伟;;突发公共卫生事件应急机制若干行政法律问题研究[J];法治论坛;2008年01期
3 ;乌鲁木齐“7·5”事件 每名遇难者获抚恤金20万元[J];中国经济周刊;2009年27期
4 陈泽伟;王玉娟;;制订突发事件应对法的新意[J];w挛胖芸
本文编号：2212979
本文链接：https://www.wllwen.com/falvlunwen/xingzhengfalunwen/2212979.html
