Research Of Limitation On The Right To Freedom Of Assembly

The right to freedom of assembly is very important right of expression for everyone.Citizens enjoy this right not only is the object and power to the implementation of theconstitution, but also is the effective path for governance mass incidents under the rule of law.For a long time, however, due to the incident happen in a special historical period, people andespecially the government there is a subjective and one-sided understanding to the freedom ofassembly, too much emphasis on the maintenance of social order, and seriously ignored theprotection of the rights of citizens.The domestic scholars have not paid enough attention toassembly right, too. The experience of over the past30years development shows that: on theone hand, our country have a rapid economic development, but also it produced more andmore social contradictions and problems, mass incidents occur repeatedly and upgrade is theembodiment; on the other hand, the great achievements of the rule of law and human rights inChina, people’s right consciousness is awakening and rising, but at the same time, thecitizen’s rights of expression and political participation rights is slow progress. our country’ssocial governance need transformation from administrative means to the rule of law means,from emphasis on social order maintenance to the social order and pay equal attention toprotection of citizen’s rights. Under the background of the new era, giving us an opportunityto rethink assembly freedom.How to realize citizen’s assembly freedom? Unlike most of the studies of constitutionalbasic rights, this article study assembly freedom from the view of limitation of right, thecontent include definition, law limit and limit of restrictions three levels on the limitation onassembly freedom. From different levels study the limits and boundaries of assembly freedomis not only beneficial to the objective understanding this right, but also to promote andsafeguard this right realization. Furthermore, this article add historical perspective anddiscusses our country’s question. Historical perspective can make us to understand the processthat developed countries and regions how from a strictly limited transfer to a reasonableprotect assembly right, this is more than simple compare countries and regions systemexperience, can give us more helpful guidance and inspiration.To our country reality questiondiscussion is made this paper’s study not only stay on the right of the discussion on the levelof theory and system, and to further thinking to the real problem. Thus make the research of this paper not only has the academic contribution of incremental, at the same time to solvepractical problems has certain guiding significance.Specifically, the article is mainly dividedinto five chapters in detail to discuss the limitation of assembly freedom.The first chapter from the perspective of ontology to discusses the definition of assemblyfreedom. Assembly should include main body, meeting places, common purpose andtemporary polymerization four elements.These four elements, combined with the inherent andessential elements of assembly freedom, defined it in this paper that the majority of peopletemporarily based on common goal together in one place free, it is free for anyone to enjoyand to be exercised in a peaceful way. Assembly right and assembly freedom has some subtledifferences, there is the concept of freedom in ancient, and the concept of rights is theinvention of the modern people. This chapter differentiate it in the second quarter, but thisarticle refer to assembly freedom is the modern right sense of freedom, assembly freedom asequivalent to assembly right, so call it “the right to freedom of assembly”. To avoid thepoliticized tendency of liberty right, the article emphasis on expression attribute of assemblyfreedom. At the same time to distinguish the concept of closely related to assembly freedom,such as civil disobedience, rights to protest and right of resistance.The second chapter from the perspective of historical study to review the evolution ofassembly freedom.The right to freedom of assembly is accompanied by a petition campaignsas a form of political participation enter the historical stage in the17th century, and became aspecific rights in the United States in the late18th century. Under the constitutionalframework to construct a set of effective standard to rule the exercise of assembly freedomhas experienced a long developing process of the19th and20th centuries. The history ofassembly freedom is the history of limitation of assembly freedom. Just the nature of suchrestrictions has been a qualitative change in the historical process, before the constitutionalgovernment system especially the constitution review mechanism did not work, restrictionson assembly freedom is akin to ban, and by way of the constitution review mechanismdebugging to keep restrictions on assembly freedom within reasonable limits. Westerndeveloped countries are able to keep a relatively reasonable balance between protection ofcitizen’s right and maintaining public order after experienced a long-time historical process.The third chapter is to systemic compare the national and regional laws which limit theassembly in "proceedure limit","method limit", and "place limit". In "proceedurel imit", thischapter compared permission system with prior-notice system. Permit is free behavior from ban. No permission, no act. Prior-notice is a notification behavior which based on the rights ofcitizens. Once is noticed, the behavior is permitted. But the crux of the problem lies not in thenames of permission system or prior-notice system, but in the substantial content. Moreimportant is whether there is actual effect of the constitution review mechanism. If theeffectiveness of the constitution review mechanism exists, even in countries or regions whichadopted permission system, the restrictions on assembly will not be too strict. In "methodlimits", exercising assembly right must abide by the obligation of peace,which mainlyincludes carrying weapons forbidden, violence forbidden as well as to the likely to spur orinstigate violence. In “places limits”, places in assembly can be roughly divided into thepublic property, private place and banned area, different places have different restriction onassemly right.The fourth chapter describes two of the most representative modes of constitutionalreview with system analysis, and inspects its application in the cases of assembly freedom.There are different standards adapt multiple reviews represented by America model fordifferent types of rights and apply, then through the accumulation of precedent developmentformed a complex and elaborate constitutional principle. While the pattern of proportionalityreview represented by Germany, can be widely applicable to any right of type case review, hasa fixed single review way, the characteristics are easy to operate. The application of the twokinds of constitutional review mode helps to keep the government restrictions on citizens rallyliberty within reasonable limits, to guarantee citizens’ freedom of assembly. However, typedmultivariate review mode compared with single proportionality review mode has theadvantage that freedom of assembly for specific, develop a more elaborate "public forum"principle, the principle of the exercise of the rights for the public to express with thegovernment on the exercise of the right to limit provides a constitutional frameworkspecification, to delimit the express right to exercise the boundaries and scope. To solve thecitizens’ right of expression and the government restrictions on the right balance betweenproblems provides the concrete operational principle; then to make the constitutional reviewmore rule constructional function outside of the relief of the right.The fifth chapter returns to rally liberty discussion with China’s question. Because ourcountry the assembly act strict limits on the exercise of citizen’s rally liberty, lead tolegislative restrictions on the right was close to ban. If according as "normal politics" and"constitutional political" to differentiate different political moment, the law should belong to a kind of law that set down in "constitutional political" background, has the characteristics ofthe passive, emergency and rushed out. Consider the international and domestic backgroundat that time, our should have a sympathise with historical understanding to thinking the law.But at the same time, our should also look at the law with the historical development view.There is a huge different between the historical background and the facing problems andhistorical background and the facing problems after more than20years the high-speedeconomic development in today, the law has extremely not content with the current pressingsocial order management and the need of the innovation of social management. According tothe article, it shall timely change the law, giving citizens this ordering and institutionalizationof express way, in order to realize the rule of law governance of mass incidents.