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Freedom Of Association

Posted on:2013-03-07Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y Y DuFull Text:PDF
GTID:1106330434471378Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
Association is an old social form of human organizations and activities. In modern society, as the legalization and constitutionalization of the freedom of association, association, once a spontaneous or voluntary behavior, gradually becomes a behavior based on freedom. In accompany with the establishment of the freedom of association as a fundamental right, association and its freedom faces regulations and restrictions set by the state. The regulation of the freedom of association implies the basic interaction between the individual’s fundamental rights and the power of a state, forming an important research object in the constitutional study particularly.This dissertation is trying to study the freedom of association in two dimensions: value and norm. The value dimension focuses on the legitimacy and reasonability of the freedom of association. The norm dimension focuses on the logical, systematic and scientific features of the related regulations. This dissertation follows two main lines:the freedom of association and the regulation of social organization. The former is the basis and purpose of the latter, as the latter is the vehicles for implementation of the former. This dissertation is mainly using a normativism approach, with sacrosanct fundamental rights as ideal, the basic principles of constitutional jurisprudence as guidelines, the constitutional and legal norms as basis, to deeply analyze and elaborate the values and norms on freedom of association, thus makes recommendations to imprQve China’s legal regulations on freedom of association. This dissertation also uses the comparative analysis methods, comparing the related legal systems of the various countries and regions, rules and cases, relevant international human rights conventions and practices with China’s constitution, legal norms and policies, in order to learn the best from them. In addition, using empirical analysis method, this dissertation investigates the mode of association regulation in China and its effectiveness, by an analysis of typical cases of social associations.This dissertation is divided into five chapters.Chapter One examines the different justification of association and freedom of association in according to the civil society theory in several historical periods. Recognition of freedom of association has passed down through ancient, modern and contemporary civil society theory, and continued to develop. The different interpretations of the freedom of association under the state-society model reflect a modern transition of the paradigm of human rights arguments from subjectivity to relationality. While, in modern society, freedom of association closely linked with individual and social values and interests, such as self-fulfillment, social participation and democracy.Chapter Two conducts a thorough investigation of freedom of association based on the fundamental rights system. It intends to differentiate the notions of the freedom of association, the right to association and the right to freedom of association, advocates the freedom of association could be for a variety of subjects. It analyzes the meaning of freedom of association, which includes both active and passive freedom. The freedom of association, with its main rights property as the rights to freedom, crossed with political, economic, social and cultural rights, has a complex rights property. The freedom of association also contains the function of the right to defense, the right to benefit, institutional safeguard, organizational and procedural safeguard and protective obligations. Those various functions mean the requests individuals can make to the state at several levels and the corresponding obligations of the state. The freedom of association has vertical effects on the state and horizontal effects on individuals. For the freedom of association in China, this dissertation recommends an indirect horizontal effect mode, applying the fundamental constitutional rights norm to the interpretation of laws and regulations, and paying attention to the principle of interests balance in case applicable.Chapter Three investigates the legal restrictions on the freedom of association. First, the restrictions on the freedom of association should comply with the principle of reservation of law. Different principles of reservation of law by nations form a strength order of reservation of law, in which, legislation, a method to increase the legal retention, provides strongest protection for the freedom of association. Second, the restrictions should comply with a series of supportive and enriching theories and rules of legal retention principle, such as principle of certainty, principle of significance, principle of definite authorization and prohibition of abuse of restriction. Third, the restrictions should comply with the principle of proportionality. Through the investigation of Germany, U.S. and the international human rights conventions, theories, legal texts and cases, this dissertation elaborates the applicability of the three component principles of proportionality to the freedom of association, and points out many shortcomings in the relevant legal regulations in China in regard to the principle of proportionality. Fourth, the restrictions should comply with the principles of non-discrimination. The purpose of restriction on the freedom of association should be strictly determined by the constitution, mainly including public interest purpose and its specific types, as well as the purpose to protect others’rights and freedoms. At last, this chapter summarizes and describes the four restrictions on the freedom of association via a method of comparative law, and discusses the constitutionality and rationality of the restrictions in China’s current laws and regulations.Chapter Four focuses on the analysis of the regulation and its mode of association laws. On the basis of analysis of the concept and characteristics of association, this chapter introduces the legal forms and principles of some major countries and regions practicing civil law system and common law system, pointing out the necessity and feasibility for non-corporate associations and some public associations, therefore different registrations and regulations should be introduced for associations of different legal types. In addition to its civil body status, association should be able to obtain its constitutional status and administrative body status. The mode of regulation of association in most countries can be roughly divided into pluralism and corporatism, which includes state corporatism and societal corporatism. These two modes have distinct difference in associations’number, competitiveness, dependence or independence of the state and integration of interest.Chapter Five looks forward to a positive response of China’s law on freedom of association issues. During the late Qing dynasty and the Republic of China period, the legislations on the freedom of association opened a door to modern association law, though with some historical limitations. The regulations on association in the revolutionary bases provided foundations and experiences for current China’s legislations. Current legal system of associations is control-oriented with a strong dual examination and approval, classifying management. Through an analysis of the China Law Society, China’s association legislation adopts a quasi-state corporatism mode. This mode and the corresponding legal system no longer meet the overall requirements of China’s social transition and development. As a positive response and improvement of China’s association law and freedom of association, we should clearly understand and acknowledge the inadequacy and defects of the current legal regulation on association, as well as the challenges and the improvement opportunities that the regulation is facing. We should adhere to the standard of rights, clarify the property of freedom of association, play the important role of freedom of association, enhance the state’s obligatory safeguard, establish multi-level and full range of legal system, optimize a reasonable and effective association regulation system, adapt to the international rules of human rights; on the institutional system, we should form an integrated and scientific legal institution of association and freedom of association, which include constitution, basic association law, criminal law, civil law, administrative law, international law, other supportive laws, and judicial review systems.
Keywords/Search Tags:freedom of association, fundamental right, social organization, regulation
PDF Full Text Request
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