Horizontal Effect of Fundamental Rights—Perspectives based on minority protections
| Autor: | Xin-Wen Huang, 黃馨雯 |
|---|---|
| Rok vydání: | 2019 |
| Druh dokumentu: | 學位論文 ; thesis |
| Popis: | 107 Traditionally, fundamental rights apply only in the public sphere but not in the private sphere. Yet, violations committed in the private sphere are gradually serious and arouse the awareness in recent years. Can claims alleging violations of fundamental rights based directly on the Constitution be permitted? Fundamental rights imply the state duties to protect the disadvantage, but legislators might fail to take legislative measures to prevent the violation of fundamental rights committed in the private sphere due to monetary politics, majority rule (in consideration of votes), legislation inaction, ending up failure or inadequacy to implement legislative measures to protect fundamental rights. Can individual alleges violations of fundamental rights based directly on the Constitution when the vertical effect of fundamental rights (state duties to protect the disadvantage) cannot be fulfilled? This study will introduce the applicable models of horizontal effect of fundamental rights in the U.S., Germany, Ireland, South African, and Spain, and consider the application of such effect as weighing of values of fundamental rights, autonomy of private law, separation of powers, and rule of law (legal certainty). The study firstly responds that horizontal effect of fundamental rights will not jeopardize the principle of autonomy of private law. Then, it considers that indirect horizontal effect and direct horizontal effect of fundamental rights should be adopted based on the applicable models in Germany and Ireland. The study also proposes several policies to reduce violations to the values of separation of powers and rule of law. Finally, the study will organize practical cases in our country, point out the resolvable and unresolvable issues in the universal opinion of our country after applying overseas cases to the law of our country, and propose several suggestions: which are to enhance the application of indirect horizontal effect of fundamental rights and to acknowledge direct horizontal effect of fundamental rights. |
| Databáze: | Networked Digital Library of Theses & Dissertations |
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