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On The Right Of Association

Posted on:2008-03-22Degree:MasterType:Thesis
Country:ChinaCandidate:L M WangFull Text:PDF
GTID:2166360212493992Subject:Law
Abstract/Summary:PDF Full Text Request
The Law Academe of China has already had a clear concept of Right as a class, now it's time to pay attention to its differentia. Hoping to contribute to this work, I focus on the Right of Associate, which is a basic Human Right. The analyse of the Right of Association is helpful not only to deepen our comprehension of this human right, but also to understand Right itself. The article consists of four parts, and in brief as follow.In chapter 1, I interpreted the concept of Right of Association and other interrelated concepts. According to the relation of the Freedom and the Right, I draw a conclusion that Right of Association is a legal expression of Freedom of Association. And then, I analyze classes and attributes of Right of association. The result of the exercise of Right of Association is to form all kinds of corporate, which is supervised by the laws of Association and called Non-governmental Organization in academe. Govermental-NGO is an obstacle in theory and practice, and I don't think it as a NGO. NGO is the structure and inscape of the civil society. The civil society is the logical result of Right of Association.In chapter 2, I analyzed the inscape of Right of Association. Unilateralism is an inherent limitation of the definition, that can be avoided by analyse of the structure. The article accepts and modifies the Theory of Five Inscapes, because a right without redressing is not a real right. So, a right consists of six elements: interest, freedom, claim, power, qualification, and redress. Freedom is the basic and essential inscape, and interest is comprehensive, which means material and spiritual interests. If no one claims on the interest, the right itself is nothing, so claim is a necessary procedure to realize a right. Power means what a man can do under the right of association. Qualification is the carrier of all the four factors above. At last, I discussed the redress of right of association.In chapter 3, I discussed three states of Right of Association. It takes three logical forms as it develops from "what ought to be" to "what is": freedom as it ought to be, a legal right, a realized right. There exists an intrinsic relationship among these three forms, which illustrates the evolution of a legal right going through three phases logically. In the sphere of "what ought to be", Right of Association is not offered by God, nor is by Law, it's an ultimate and self-evident right. The only reason is man needs it. The state and the law must affirm it or does not ban it, so that people can enjoy it. The affirmation and protection of Right of Association in modern society is carried out through a legal declaration of a right. To analyze Right of Association in the point of "what is", the keystone is the practice in China Mainland. According to the valid law system, Freedom of Association is not safeguarded properly, there is a gap between "what ought to be" and "what is" about Right of Association. And it could not realize the logical evolution from "what ought to be" to "what is". Law that inhibits a constitutional right is illegal, and people should deal with such laws in a proper manner.In chapter 4, I discussed NGO, the association as what is, and its validity. The concept of Validity is a strong analyzing instrument, which oppugns the actual order fiercely. Nowadays, there happened lots of discussions about Validity of NGO. To respond an authoritative theory in academe, which includes four kinds of Validities, I figure out a new theory than NGO in China faces recognition in two aspects: appraisals from the state according to laws and from its members according to justice. And I discussed these two questions in details.
Keywords/Search Tags:Right, Right of Association, Freedom of Association, Non-governmental organization
PDF Full Text Request
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