On Personal Liberty And Its Legal Protection

Personal liberty, as an elementary human right, is widely approved by various countries' constitution, laws and international human rights documents. It is the origin of the other liberties of human being and presupposition for their realization. So far as this country is concerned, ordinary people do not have profound comprehension of human right idea, and a definite gap is existing in the legislation regarding protection or restriction of personal liberty, as compared with those in foreign countries under the rule of law and international conventions. In recent Chinese legal practice, cases about illegal depriving or restriction on personal liberty occurred increasingly, which exerted a very bad social influence. Meanwhile, how to protect citizen's personal liberty has became one of the most important issues of China's legal system construction.This article systematically states the theoretic sources of personal liberty, and makes a comparative study of various countries law system regarding the protection of personal liberty. On the basic of above analysis, the article discusses the theoretic foundation and the value orientation of providing legal protection for personal liberty, pointing out the outstanding problems of China's current legal system and expounding the proposition of establishing a legal guarantee mechanism for personal liberty.The article is divided into four sections. Part one states the theoretic sources of personal liberty, tracing the developing history of personal liberty idea from a legal philosophy perspective, and concluding a definition and features of personal liberty in nowadays society governed by law. Part two makes a comparative analysis of various countries legislative laws, enumerating representative legislation both from Common Law Family and Civil Law Family, as well as international conventions, so as to make a reference for China. Part three analyzes existing problems and the reasons hereof in China's current legal system. Given that legal protection of personal liberty is mainly provided by public law, this part is focused on analyzing the provisions of the Constitution, Criminal Procedure Law and Administrative Law System of China. Part four expounds a proposition of establishing China's legal guarantee mechanism for personal liberty. Firstly, the principle of legal procedure for restriction on personal liberty must be added into Constitution, as well as examination system of constitution-violation and constitutional litigation system. Secondly, Criminal Procedure Law and Administrative Law System must be modified both in substantive provisions and in procedure provisions, in order to restrict the unconstitutional restrictions on personal liberty. Finally, to form an integrative and concordant legal guarantee mechanism, that will be guided by the Constitution and supported by Criminal Procedure Law and Administrative Law System. Such legal guarantee mechanism will build up a strict and effective fortress to keep people's personal liberty from infringements. In addition, we should continue to make great effort to set up social sense of human right and accelerate the primitive accumulation of judicial experience. To make the legal exercise of powers by legislative organ, judicial organ and administrative organ become the most important way of education and modal, for citizen to awaken and remould the concept of human right in their mind.