| Regarding the fulfillment of the state obligation to protect fundamental rights, the principle of prohibiting insufficient protection should be applied to examine whether the protection plan adopted by legislators meets the constitutional requirements. There is no structural symmetry between the principle of prohibiting insufficient protection and the principle of proportionality, and it is not feasible to construct the former by imitating the latter. Regardless of whether there is a conflict of fundamental rights, the principle of prohibiting insufficient protection only puts forward the minimum protection requirements for legislators. As long as the (partial) legislative inaction is anticipated to be possible for the protected person, legislators will not violate this principle. In the determination of anticipated possibility, comprehensive consideration should be made of a number factors and, on the basis of modern scientific and technological cognition, the current normal level of acceptance and tolerance by social individuals should be taken as the standard. In the case of conflict of fundamental rights, legislators still have a certain decision-making space under the two-way constraint of the two principles. Compared with the principle of proportionality, the principle of prohibiting insufficient protection usually leaves legislators with more decision-making space. |
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