On Freedom Of Trade In Constitutional Law

In full-fledged market economy countries, the theoretical researches and explorations of freedom of trade have already passed, while in new emerging countries, it is high time for the protection of the freedom of trade, especially in a transition socialism country like our country. However, the surging events against the freedom of trade in the socio-economic realities reveals the current situation that large numbers of freedom businesses are under almost naked public authority, either based on the policy " giving ", or based on "taking", which makes us cannot help but worry. Meanwhile, academic researches of freedom of trade are mainly from the perspective of commercial law, rarely discussed from constitutional law, even if they did, they only limited to the introduction from western countries, that kind of "lame" research and discovery are obviously cannot provide theoretical support to build protection mechanisms operating on the Constitution for freedom of trade. For this reason, it is absolute necessary to compare and draw lessons from the theory and practical experience of protection for freedom of trade that western countries had accumulated around the text of the Constitution, to regulate the analysis from the position of Constitutional norms, to find hidden freedom of trade in the constitutional provision, to clarify its internal structure and status, to construct the initial protection mode under the existing constitutional order of freedom of trade.As is well known, the protection for freedom of trade is something inherent in the constitution of Constitutionalism. However, China is a developing country in the primary stage of socialism, and freedom of trade is not a fundamental rights in our current Constitution, as well as there still exists controversy about whether socialist system is compatible with market economic system and economic freedom or not. Therefore, different from countries with mature constitutionalism, whether the distinction of operating freedom exists in our Constitution is not sure. But admittedly, with the deepening of economic reform, China gradually expanded the free space for freedom of trade, in fact, the main market economy had already enjoyed a certain freedom of trade at the normative level, human rights safeguards, socialism terms of the market economy, private property protection provisions, and other non-public economy terms accordingly are written into the Constitution through a constitutional amendment process, which reveals liberty, property, and other basic protection of the rights is always a major issue cannot be bypassed when our Constitution is still in the transition phase from the " recent constitution " to " modern constitution ", the text of the Constitution is still filling the " particles" of valuable modern constitutionalism, and hence it offers a possible for us to analyze and discover our Constitution on the freedom of tradewith the application of sophisticated theoretical models put forward by international constitutional scholars.Based on this point, after the analysis of internal structure of the freedom of trade as a fundamental right in detail and determining its relationship with human dignity and the fundamental rights of its position in the system, the article is carried around our current constitutional text and performs normative analysis, demonstrates the characteristic " master of the economic system" of" socialist market economic system "in our Constitution, in the primary stage of socialism, the balance point of tension between it and the "basic economic system terms" lies in "Maintaining the effective functioning of the market mechanism ", and the effective operation of the market mechanism lies in "freedom of trade, property rights and other economy freedom governed by law being under the equal protection of economic freedom." As deduced, the socialist market economic system in our Constitution provides a system of protection of freedom of trade. Then further constrained reconstructions to the existing constitutional text in the "operational autonomy ", which derives a derivative constitutional right:the operational autonomy and its essence is a manifestation of freedom of trade in our Constitution, which had done a detailed analysis as subjective rights and objective law of the internal structure of operational autonomy in the theoretical framework of constitutional rights. Thus, we find that although the text of the Constitution does not specify the freedom of trade, it can be derived from the interpretation of the text appear to have implied recognition and protection of the constitutional order of freedom of trade. However, in view of our Constitution censorship still has a blank field, which makes freedom of trade like delicate veils on a dancer, so we need to build an effective censorship within the existing constitutional order. After studying other's old clothes, namely, comparing the protective mode for freedom of trade taken by Germany, Japan and US, and then tailor our own cloth, then we need to find system devices with similar functions, and construct a progressive complex constitutional review mode.