국제인권규약 가입에 따른 중국헌법상 기본권조항의 현황과 개선논의 분석

Abstract

China signed and ratified 'International Covenants on Economic and Cultural Rights (A Covenant), signed 'international Covenants on Civil and Political Rights (B Covenant) and inserted human rights provisions through the revision of the Constitution of the China in 2004. With the powers to regulate human rights, a universal value of humankind, International Covenants of Human Rights is superior in its constitutional authority and effects to the Constitution of China and applies to Chinese human rights as it is to people in any other country. Also, there is no exception against the covenants in the source of the constitution of China who has agreed and signed for the covenant. However, the covenants conflicts with current Constitution of China which bases 'Socialism with Chinese Characteristics' as its ideology. Such conflict is the main reason why China has not ratified B Covenant. While universality, identity, and superiority of human rights over a nation are considered the most important values by the Covenants the Constitution of China only reflects the viewpoint on human rights that support class-consciousness in giving human rights, allowance of the government to grant rights, and sovereignty-over-human rights approaches. The Constitution of China lacks in its regulation 14 provisions including rights to strike, right to life, freedom to choose and change residence, freedom of expression, prohibition of forced labor, etc. Although other constitutional provisions such as self-determination, freedom of religion and faith, right to education exist but such provisions often contradict to each other and the degree and range of effective protection are narrower and poorer in reality than ones specified than the Covenant. It can be mistakenly accepted that reservation of law in the Chinese constitution, since it provides no regulation on the method, purpose, and limitation to check the power of the state, is to give the lawmakers authorization to limit people's basic rights and discretionary power to limit the power of the state. As a measure to mediate the conflict between the two sets of different constitutional provisions Chinese academia suggests ratification of B Covenant via reservation of certain provisions under current law, effective practice of A covenants and B covenants by using legal interpretation mechanism, and drastic revision human rights provisions that are currently effective. Eventually, a gradual development of standards to secure human rights of the constitution from establishment of the「Basic Human Rights Law」and revision of the constitution, which will be substantialized by reenforcement of basic human rights, firm establishment of judicial review of legislation and constitutional petition is expected.