The Restrictions on the Rights of Minors: Legitimacy, Concerns on Generalization and Principles Reiteration

LI Haifeng

Abstract： The proper legal protection of minors requires the removal of any doubts about the substantive restrictions that may be placed on the path of form protection. Under the current legal framework， minors' political rights， certain personality rights， certain personal freedoms， socio-economic and cultural rights， and rights related to Internet information are restricted to a certain extent. Compared to the restriction on the rights of adults， the restriction on the rights of minors has a unique pattern： first， the theoretical basis for the restriction on rights is different， and it does not take the protection of the public interest and the coexistence of inter-subjective rights as the first value; second， the procedural composition of the mechanism for the restriction on rights is more special， and since minors cannot directly participate in the legislative process， the legal restriction on their rights is a consensus judgment made by adults; third， the restriction on the rights attached to minors is more of a short-term restriction and does not have a long-term， consistent and dispositive character.

The fact that minors cannot participate in the legislative process of restriction measures because of the restriction on their rights， although intended to protect minors， in fact， creates more constraints， which in turn leads to the lack of democracy， procedural incompleteness， and discretionary nature of the restriction on rights in the legislation. It is necessary to justify the restriction on rights in terms of both motivation and conditions. In terms of motivation， the restriction on the rights of minors is based on the judgment that minors lack sufficient capacity to act and also on the strict protection of minors; in terms of justification， the first precondition is to ensure that the interests of minors are maximized， that the principle of the legal reserve is strictly adhered to and that the scope of the restriction on rights is clearly defined， and that it complies with the principle of proportionality.

In current times， there is a tendency for the restriction on minors' rights to be generalized， mainly in terms of the type， scope， and manner in which minors' rights are restricted. To avoid such generalization and to protect the rights of minors to the fullest extent， it is necessary to reaffirm the principle of the restriction on the rights of minors. Firstly， the principle of "most favorable to minors" must be implemented， and legal judgments must be made from the perspective of the minor subject; secondly， the principle of reservation of rights must be strictly adhered to， ensuring that the measures to restrict the rights of minors are established by law; thirdly， the principle of clarity must be complied with， ensuring that legislation restricting the rights of minors is precise; and lastly， the principle of proportionality must be strictly adhered to. The restriction on rights must choose the means that cause the least harm to minors， and a balance must be struck between the damage caused by the restrictive measure and the pursuit of the objective.

KEY WORDS： minors; restriction on the right; legitimacy; the principle of most favorable to minors