Study On State Obligations Of Freedom Of Migration

This dissertation makes a specialized and systematic research of freedom of migration from the aspect of national obligations, mainly basing on the background of new pattern urbanization, the perspective of constitutional jurisprudence and the dimension of peasant. Freedom of migration is a comprehensive constitutional right which haves extremely rich connotation. Freedom of migration has the superficial attribute of personal freedom and the essential attribute of right of equality. The key of new pattern urbanization is "citizenization of the peasants", during this process we should guarantee peasants’freedom of migration, especially realize the pursuit of the right of equality. After lots of peasants transformation into urban, how to configure the resources, how to preserve the rights of equality, how to maintain order, how to deal with the relationship between reform, development and stability, how to coordinate the aspects of population, resources and environment, and so on. These problems is not only the challenge but also an opportunity to the state management system and governmental management ability. The national obligations research of peasants’ freedom of migration helps to adapt to the central decision-making about "promoting the modernization of national management system and management ability", which is of great significance to promote and implement the national strategy.This dissertation firstly gives an in-depth analysis in connotation, restriction and violation of freedom of migration. Then inspects the basic course of freedom of migration security and elaborated theoretical principle of freedom of migration from the aspects of state obligation. After that, gave a systematic analysis to necessity, feasibility and barrier of freedom of migration in the constitution. Finally, propose the security mechanism of freedom of migration for Chinese citizen. This paper contains five chapters besides the introduction.The First Chapter mainly focuses on the constitutional status of freedom of migration. It can be read from three levels:Seeing the meaning, freedom of migration has "two levels":semantic meanings and literally meanings. Seeing the nature, freedom of migration has dual nature, personal freedom and right of equality. Seeing correlation degree, freedom of migration has relationship with the right to vote, the right to education, the right to social security. The second section gives an analysis to restriction and infringement of freedom of migration. This section put forward the principle of constitutionality:principle of special legal reservation formally and principle of proportionality substantially. There are state behavior and non-state behavior in unconstitutional restriction of freedom of migration and the state behavior can be divided into legislative behavior, administrative behavior and judicial behavior.The Second Chapter inspects the development and changes of freedom of migration from the historical dimension. This chapter firstly expounds the disintegration of the traditional class identity system, then analyzes the positive significance gave by freedom of migration that promotes modern construction of national identity, and then observes security course of freedom of migration in the modern western countries. This chapter gave a historical retrospect to foreign farmers in movement and its constitutional protection and preliminarily summarized the basic security experience of the foreign freedom of migration. Finally, analyzed the historical development of our country’s peasants’freedom of migration:The basic situation of migrant farmer, changes in constitution and relation between household registration system and peasants’freedom of migration.The Third Chapter discusses the state obligation of freedom of migration security in theory. Based on Germany’s constitutional rights theory and domestic related research results,the state obligations contains respect obligation, protect obligation and payment obligation. Firstly, defensive function is the primary function of freedom of migration in democratic constitutional countries. So state respect obligation is the fundamental premises of citizens’ freedom of migration security. Secondly, analyzed the origin of state protective obligation and obtained a decision:freedom of migration need state protective obligation after analyzing the nature of subjective right and objective norms. Then discusses the hierarchy system of state protective obligation. Finally, reviewed the logical starting point of state payment obligation about "principle of sozialstaat" and "appearance of social rights" and then analyzes four types of state payment obligations:systematic payment, material payment, service payment and procedural payment.The Fourth Chapter analyzes freedom of migration in the constitution from practical dimensions:the necessity, feasibility and the obstacle. Firstly the necessity problem of limited interpretation in human rights, the absence of freedom of migration in constitution and the weak identity of peasants become increasingly apparent. Secondly Seeing the feasibility, it has the opportunity From the policy of "new urbanization", basis of peasants migrating with a large scale and the condition provided by peasants’ rationalization. Thirdly the obstacles in constitution about peasants’ freedom of migration both comes from the inhibition that took from imbalance of social structure, from the tension between the value of the modern state’s development and institutional change., and also the regulation on the effectiveness of the power that brought by the expansion of government.The Fifth Chapter constructs the security mechanism of Chinese freedom of migration from the height of state obligations implementation. This chapter follows the basic idea of developing trend, the path selection then to the mechanism construction. In developing trend of freedom of migration security, it comes from one to dualistic,from politics to justice and from domestic to international. Then this chapter provides elementary path of freedom of migration security: Recovery of "into the constitution is the premise," deep "households" is a breakthrough, system "embedded" is the condition. At the end of the article we proposes the establishment of constitutional protection mechanism from macroscopic perspective, and them the implementation mechanism from mid-gradational perspective and the citizenship mechanism from microcosmic perspective.