【作者】 蔡建芳；

【导师】 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 参加文化生活权利是由国际人权宪章和我国宪法确认的一项人权,同时也是受教育权等文化权利的基础和核心。但长期以来,参加文化生活权利在国际社会和国内领域的理论研究和法律保障上,一直处于“被忽视”和“不发达”的状态,其主要原因是由于权利概念不清晰、权利内容不明确和权利保障不完善所致。为此,本文从探讨参加文化生活权利的三个构成要素的含义入手,对参加文化生活权利的概念、性质、内容和保障四方面进行了理论论证和实践分析,以期以参加文化生活权利为范例,反思人权的普遍性与特殊性、人权的相互依赖和不可分割性以及人权的分类方法等基本理论问题,同时为我国更好地履行参加文化生活权利的国际人权义务和实现宪法规定的公民文化活动权利,提供理论指导和经验借鉴。更多还原

【Abstract】 The right to take part in cultural life is a human right both recognized by the international human rights treaties such as International Covenant on Economic, Social and Cultural Rights and declared by the international human rights instruments such as The Universal Declaration of Human Rights, and it also is a fundamental right of citizens under Chinese Constitution. The right to take part in cultural life is not only the premise and foundation of a broad sense of cultural rights including right to education, but also is cultural right in narrow sense. However, compared to civil rights, political rights, economic rights and social rights in the system of human rights and the right to education, the right to take part in cultural life is one being neglected human right both in theory and in practice. The reason is mainly that the concept, scope and status of the right to take part in cultural life are not clear enough, and the monitoring mechanism is not effective enough. Therefore, the article dedicated to the research on the concept, scope, status and monitoring mechanisms of the right to take part in cultural life, with a view to provide a clearly theoretical definition to the right to take part in cultural life and to promote greater attention and better protection of the right in international and domestic human rights practice.Except for the preface and epilogue, the text is divided into five chapters.Chapter one is about the elements of the right to take part in cultural life. The right to take part in cultural life is a compound word composed of the three elements that are "cultural life", "to take part in”and "rights". Only understanding clearly the three elements of the right, the meaning of the right to take part in cultural life could be clearly defined. Therefore, this chapter combs different scholars’concepts of "culture" or "cultural life", and presents a cultural concept of creative activities on the basis of analysesing and rethinking the concept of dual culture and the concept of three-dimensional culture held by scholars of human rights.Culture is an aggregate concept including behavior, value, performance and symbols and its core is creative practice. At the same time, the chapter analyses the three meanings of participation, namely, participation in cultural life and enjoy the cultural life and contribute to cultural life, and explains the five elements of participation in detail, namely availability, accessibility, acceptability and adaptability, appropriateness and non-discrimination and equality. At last, the chapter analyses three existing forms of the right to take part in cultural life in moral rights, legal rights and real rights.Chapter two is about the nature and status of the right to take part in cultural life in the system of human rights. Firstly, the chapter analyses the interaction between the right to take part in cultural life and civil rights, political right, economic rights, social rights and the third generation of human rights. Secondly, the chapter demonstrates the fully duality characteristics of the right to take part in cultural life by four areas of human rights point of view, namely positive rights and negative rights, individual rights and collective rights, rights by immediately realization and rights by progressive realization and universal rights and special rights. Thirdly, the chapter demonstrates the right to take part in cultural life has doublely basic position in the human rights system from two perspectives that the right to take part in cultural life is fundamental human rights and basic cultural rights.Chapter three is about the contents of the right to take part in cultural life. Human rights could be effective protection and achievement only if the subjects and contents of its rights and duties are clear. Firstly, the chapter discusses the scope of the subject of the right to take part in cultural life. As a human right, individual is the main and basic holders of the right to take part in cultural life. However, because women, children, the elderly, the disabled, the migrant workers and their family members and others are disadvantaged groups, the state should provide them with special protection for the realizatiotion of their right to take part in cultural life. At the same time, due to the duality characteristics of the right to take part in cultural life, collective subjects such as minorities and indigenous peoples also are the holders of the right and should receive special protection. Secondly, the chapter further clarifies the concrete contents of rights enjoyed by the holders of the right of take part in cultural life, including the right to engage in creative cultural activities, the right to enjoy cultural facilities and services, the right to select way of cultural life, the right to maintain and develop cultural identity, the right to express and disseminate cultural achievements and the right to participate and decide cultural affairs. Thirdly, the chapter discusses the duty bearers of the right of take part in cultural life. On one hand,the chapter analyses the reasons that the States becomes the basic and primary duty bearers in theory and international and domestic legal practice. On the other hand, the chapter analyses the reason why the transnational corporations and other business enterprises are the duty bearers and presents the specific obligations to protect the right to take part in cultural life. Lastly, the chapter focuses on the contents of general obligations and core obligations of the State to the respect, protect and fulfill the right to take part in cultural life of everyone.Chapter four is about the protection of the right to take part in cultural life. The chapter studies fully three legal protection mechanisms about the right to take part in cultural life in global, regional and domestic levels. Firstly, the chapter introduces the global protection mechanism including the Universal Periodic Review and the Special Procedures of the UN Human Rights Council, State Reporting Procedure and Individual Complaint Procedure of UN Core International Human Rights Treaty-based Bodies, and makes a comparison among the different procedures. Secondly, the chapter introduces the different regional protection mechanism about the right to take part in cultural life in Europe, America and Africa, and evaluates theirs actual effect by the rights recognized in the regional human rights treaties and the protection level of human rights protection mechanism. Thirdly, the chapter describes the domestic legal protection of the right to take part in cultural life in different countries, which including the legislative protection, administrative protection and judicial protection. Chapter five is about the protection of the right to take part in cultural life in China. Firstly, the chapter combs systematically the situations of the realization of the right to take part in cultural life in China by specific legal provisions and accurate data. Secondly, the chapter analyses the shortcomings exposed by the situations of huaman rights protection. Lastly, the chapter gives some suggestions about how to improve the realization of the right to take part in cultural rights by legislative, administrative and judicial protection in China.In short,In the case of the international community and the countries wordwidely give more and more attention to the right to take part in cultural life, the research of the concept, nature, content and protection mechanism of the right to take part in cultural life in theory has important guiding significance to clear and promote international and demotic human rights obligations of the duty bearers. At the same time, the introduction of the advanced experience on protection of the right to take part in cultural life would provide useful reference for China to protect the basic cultural interests of citizens and meet the basic cultural needs of citizens by establishing sound legislative, administrative and judicial systems and taking appropriate measures.更多还原