Seek the relationship between fundamental rights and general rights

Concept: Rights and power are two different concepts, the former is a legal concept, and the latter is a political concept. Rights refer to the rights and interests that arise in society and are premised on a certain social recognition, and are independently enjoyed by their holders.

Power, as an active force, is nothing more than a person who holds a certain public office. The role and influence of power varies, first of all, according to the position occupied by the power holder. Power is characterized by the following aspects:

First of all, power is an active and dominant force. In the case of a specific power, the exerciser may, in accordance with his or her respective powers, give orders and exercise management power on matters within the scope of the power. Second, power is an act of public office (i.e., public power does not have a private nature).

That is to say, the organ exercising a certain administrative power of the State and its public officials are only authorized or entrusted by the organ of state power to exercise a specific administrative power on behalf of the State. Power is an ability or potential that is closely related to public office, and if there is no public office, there is no power. Thirdly, power has a dual nature, that is, power has both its organizational, constructive and creative side, and its destructive, intrusive and corrosive side.

The duality of power is determined by the dual identity of the person exercising power.

2. Different punishment methods. Rights can generally be waived and transferred, while rights must be exercised in accordance with the law and cannot be waived or transferred.

3. The rules of presumption are different. The presumption of rights is "nothing expressly prohibited by law and may be done." "The power is limited only to the extent expressly provided, otherwise it is ultra vires.

4. Different social functions. Rights generally reflect private interests, and power generally reflects public interests.

Second, the connection between the two: 1. Interdependence. On the one hand, the supreme power of a country** is the transfer of part of its own rights by its citizens; Power, on the other hand, plays a decisive role in the process of recognizing natural rights as legal rights.

2. Interaction. On the one hand, citizens can control power with their rights; On the other hand, the realization of legal rights and remedies are also inseparable from power.

3. Conflicting with each other. On the one hand, power is an indispensable force for guaranteeing rights; On the other hand, in order to effectively protect rights, it is necessary to limit powers.

Fundamental rights are a comprehensive system of power determined by constitutional norms, which refers to the rights granted by the Constitution and indicate the important position of the subject of power in the rights system. The rights that indicate the fundamental political, economic, and social status of the subject in the power system are usually included in the category of basic rights, reflecting the fundamental, foundational, and decisive nature of rights.

A subordinate right is a right that is attached to a principal right. The mortgage, pledge, guarantee and interest attached to the principal claim in the security interest are all subordinate rights of the principal right. Since the subordinate right is derived from the principal right, the principal right is invalid and the subordinate right is invalid, and the subordinate right is extinguished with the extinction of the principal right, the subordinate right must not exist separately from the main right.

Based on the above reasons, the laws of many countries and regions have determined the system of transferring the rights of the principal of the contract and transferring the rights from the rights at the same time. For example, § 401 of the German Civil Code provides that when a claim is assigned, the mortgage, ship mortgage or pledge of the claim, the right arising from the balance of the claim and the rights arising from the provision of security by a right such as the above-mentioned right are transferred to the new creditor. Article 1263 of the Italian Civil Code provides that, depending on the effect of the assignment, the assignment of a claim entails the assignment of the privilege of first instance, the security in person and in rem and other subordinate rights to the assignee.

Article 295 of the Civil Code of Taiwan stipulates that when a creditor's right is transferred, the security and other subordinate rights of the creditor's right shall be transferred to the assignee. However, this restriction does not apply to those who have an inseparable relationship with the transferor.

When the creditor assigns the principal right, the subordinate rights should be transferred together, and the assignee shall obtain the subordinate rights related to the creditor at the same time as the rights. Considering that some subordinate rights are set up for the creditor itself and have an inseparable relationship with the creditor, while establishing the principle of transfer of subordinate rights with the principal right, it is stipulated that the subordinate rights exclusive to the creditor themselves shall not be transferred with the auspicious transfer of the principal right.

1. The subject of the act is different from the nature of the act: the subject of rights is generally citizens, legal persons and other social organizations. The subject of power can only be the State organ to which the power is delegated and its specific staff.

According to the nature of their behaviors, rights behaviors are generally civil acts and social and political acts; Acts of power are generally legislative, administrative, judicial and other acts that belong to official duties, also known as authority, which is a kind of public power.

2. Coercion is different: both rights and powers are mandatory for the counterpart. Power has the direct coercive power of the state.

Rights are only backed by the coercive power of the State. When the right cannot be realized or is infringed, the right holder may request the state to exercise its power to provide protection or remedy, but the right holder shall not exert coercive force on the counterparty on its own. Therefore, the coercion of power is direct, and the coercion of power is mediated by power and is indirect.

3. Different legal status: the right can be enjoyed by the right holder alone, which can be a right with a specific counterparty (such as creditor's rights) or a right with a general counterparty (such as property ownership). In the presence of a bilateral relationship with the corresponding obligor, the legal status of both parties is equal.

Some of the rights enjoyed by the subject of rights can also be transferred, or the rights only exist in the relationship with the specific counterpart. Power is one-way, top-down, and bilateral relations are unequal. The subject of power shall not give up or transfer the power granted to it, and the power is also a responsibility (duty) for the state, and it must not be neglected or used, otherwise it will be a dereliction of duty.

Rights are the use of rights as benefits, seeking improper benefits for oneself or others; Power is pure.