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随着社会情势的发展变化,不仅国家权力,而且其他社会组织或个人对公民学术自由权利造成侵害的事件屡屡发生。基于基本权利保障的现实需要,基本权利宪法规范的效力理论不断发展,逐渐由传统的公法领域向私法领域延伸,即基本权利在遭受社会组织或个人的侵害时,在无法律救济的条件下,可援引基本权利的宪法规范,寻求宪法救济。当前,基本权利宪法规范私法效力有两大主流理论:一是德国的“第三者效力”理论;二是美国的“国家行为”理论。这两大理论资源为学术自由宪法规范在私法领域的运用奠定了正当性基础。
With the development and changes of the social situation, not only state power, but also other social organizations or individuals to infringe on the rights of academic freedom of citizens have occurred frequently. Based on the actual needs of the guarantee of basic rights, the theory of the effectiveness of constitutional norms of basic rights has been constantly developed and gradually extended from the traditional fields of public law to the fields of private law. That is to say, when the basic rights are violated by social organizations or individuals and without legal remedies, Constitutional norms that invoke basic rights and seek constitutional remedies. At present, there are two main theories about the basic rights and constitutional norms of private law: First is the theory of “third party effectiveness” in Germany; second is the “theory of state behavior” of the United States. These two theoretical resources have laid a legitimate foundation for the application of the constitutional freedom of academic law in the field of private law.