| A number of fundamental rights in Chinese Constitution are guaranteed in an unreserved manner, that is, there is no explicit reservation clause on these rights either in laws or in the Constitution. There are three theoretical views on the question of what formal requirement should be applied to the restriction on these fundamental rights, that is, reservation in law, reservation in constitution, and abandonment of reservation. Chinese Constitution does not expressly provide the formal requirement of restriction on fundamental rights, so as to maximize the guarantee of these rights. The theory of abandonment of reservation is contrary to the normative purpose of maximizing the guarantee of fundamental rights. Although the theory of reservation in constitution conceptually agrees with this normative purpose, from the perspective of comparative law, its connotation often changes in practice, so that it loses the character of the formal requirement for rights restriction, and therefore is not feasible either. The theory of reservation in law is most conducive to the safeguarding of fundamental rights and it is also supported by the principles of democracy and rule of law, the theory of functional propriety, and Article 33 paragraph 4 of the Chinese Constitution. |
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