Social Sciences in China, 2025

Vol. 46, No. 2, 2025

The Formation and Structure of the Statutory Reservation of Fundamental Rights in the Chinese Constitution

(Abstract)

Chen Peng

The statutory reservation of fundamental rights is not a restriction on administrative power, but a directive and constraint on legislative power. From the perspective of the transformation of the functions of the Constitution, the formation and evolution of constitutional texts, and the development of the implementing mechanisms of the Constitution, it is necessary to change the approach to examination and scrutinize the statutory reservation of fundamental rights in the current Chinese Constitution from a normative dimension. The text of the Constitution adopts the structure of differentiated statutory reservations, covering general non-specific reservations, qualified reservations, non-reservations, content-forming reservations, and the special terms of the articles on property rights. The history of the Constitution’s formulation indicates that Article 51 of the Constitution of the People’s Republic of China does not constitute an obstacle to the construction of differentiated statutory reservations; its definition of the limiting reasons for fundamental rights without statutory reservations can be interpreted in a narrow sense, which thence enables both the application to fundamental rights of general non-specific reservations and qualified reservations and the highlighting of the normative significance of differentiated reservations. The system of differentiated statutory reservations can also provide guidance for resolving fundamental conflicts over rights and distinguishing the criteria for constitutional review of legislation.

Keywords: fundamental rights, statutory reservations, Article 51 of the Constitution of the People’s Republic of China, conflicting fundamental rights, constitutional review