Research On The Provisions Of Personal Freedom In The Constitutions Of Modern China

The Personal freedom is the first point of individual freedom. The right of personal freedom is always declared as a fundamental right in constitutions. And legal restriction of personal freedom is one of major forms by state power to punish and inactivate injuria and crime, to protect others' rights and public interest. Therefore, according to the theory of fundamental rights, firstly it is declared in the text of constitution that, people have the right of personal freedom. Then the right should be restricted for public interest. And at last the power of restriction should also be restricted and remedial rights should be protected. They construct a constitutional mode of fundamental rights, that is “declaration of rights—restriction to rights—remedy of rights”. In the transition period in modern China, the declaration and assurance of the right of personal freedom is of great significance. Through combing of the constitutional history of personal freedom in modern China, man can clearly see the change of the right of personal freedom and perfection of constitutional process.Firstly, The constitutional protection of personal freedom, means prohibition of physical force and aggression, such as slavery, sale of population and physical punishment.Those ware often seen in the history, even ware recognized in the ancient society. Those ware the methods and performance of the rulers' domination and exploitation. The prohibition of physical force and aggression is the proper meaning of the right of personal freedom, and in the constitution of early Republic of China did not make special provisions. However, in face of the political reality that the Beiyang Government followed the history of bad governance, constitutions of Hunan Province and later list articles against slavery, sale of population and physical punishment.Secondly, The understanding of constitutionalism for the right of personal freedom in modern China changed from that the constitution only declare the rights to believe that the constitution should endowed people with relief pattern. The preparation for constitutionalism in late Tsing Dynasty was the first time to use western constitutionalism to define the relationship between government and citizens.However, the rulers only wanted the form to save the crisis of ruling, didn't accept the idea of democracy and the rule of law behind constitutionalism. They thought to limit the fundamental rights of people rather than admit the priority of the rights. "The provisional constitution of the Republic of China" only declared the right of personal freedom, "Tiantan constitutional draft" creatively introduced the Writ of Habeas Corpus to protect personal freedom. Since then, the constitutions had strict restrictions on the power that restrict the right of personal freedom, from simple "according to the law......" to the legal procedures. The relief way for the right of personal freedom provided by the Constitutions changed from Writ of Habeas Corpus to review process, which was more in line with the rule of law in modern China.Finally, the Provisions of fundamental rights in the constitutions during the period of Nanjing national government had absorbed many experiences from the constitutions before. The constitution of 1947 made provisions for personal freedom with maximum length, and established The Justices of the Constitutional Court and the system of national compensation to provide constitutional protection for personal freedom and other fundamental rights.