Constitutional Review On Restricting The Military Service Objector's Right To Education In China

Recently,events that the youth refuse to perform military service and get a administrative penalty of restricting the right to education have happened frequently in many cities in China,which initiate heated discussions in regard to the relationship between the obligation of military service and the right to education as well as the basic rights of citizen.The legal responsibility of the military service objectors in the Military Service Law shows the conflict between the obligation of military service and the right to education.The conflict is that people's right to education would be restricted when he refuse to perform military service.Since the enactment of the Constitutional Amendment in 2018,the Constitutional review system has been established and any government behavior that imposes a restriction on the basic right of citizen should be reviewed.This paper plans to review the provision of restricting the military service objectors' right to education and answer the following questions:(1)what is the core of the conflict between the obligation of military service and the right to education?(2)what is the rule to resolve this conflict?(3)dose the government behavior that impose a restriction on the basic right of citizen conform the conflict resolution?(4)how to perfect the Military Service Law in order to realize the intention of the Constitution which the state respects and guarantees human rights?The introduction introduces the topic of this paper briefly.Firstly,this paper arises from the hot events that the youth refuse to perform military service and get a administrative penalty of restricting the right to education.This kind of events shows the conflict between the obligation of military service and the right to education.Secondly,this part clarifies the concept of military service objector and constitutional review.Thirdly,the meaning and research methods of this paper is introduced in this part.Chapter one,analyses on legal issues concerning the restriction on the military service objector's right to education.The main legal issue of the provision which restricting the military service objectors' right to education is the conflict between the obligation of military service and the right to education.The state creates the obligation of military service to maintain public interest and personal basic rights in the process of exerting its function.The right to education is one of the basic rights of citizens written in the Constitution and could be restricted by public interest within limitation.The nature of the conflict between the obligation of military service and the right to education is the conflict between public interest and personal interest.Chapter two,the standard to review the provision of restricting the military service objector's right to education.The standard of Constitutional Review is the specific standard to review the restriction on the basic rights which is the legal expression of the conflict between the obligation of military service and the right to education.Principle of proportionality which pays more attention to system construction and abstract thinking rather than presetting standpoint or preference meets the Constitutional rules and practical requirement more and it is consisted of the principle of suitability and the principle of necessity and the principle of proportionality in a limit sense.Chapter three,the restriction on the military service objectors' rights to education fails to meet the principle of proportionality.Firstly,the restriction on the right to education goes against the purpose to perform military service,which is not in accordance with the principle of suitability.Besides,the lack of education is harmful not only to personal development but also to the advance of a nation.So the restriction on the right to education is not in accordance with the principle of necessity.At last,it is not urgent for everyone to perform military service to safeguard the national security in peacetime.The cost of restricting the right to education does not equal to that of refusing to perform military service so it is not in accordance with the principle of proportionality in a limit sense.Chapter four,suggestions on how to perfect legal responsibilities of military service objectors.Firstly,restrict the property right of the military service objector.Chinese Constitution authorizes the law to restrict the property right in the need of public interest on this premise that lawful private property is inviolably.But the restriction on the property right must conform to the principle of proportionality.Secondly,restrict the military service objector's freedom of migration.The freedom of migration is a kind of composite right and could be limited by Constitution proportionately to maintain national security and social order.Moreover,establish the system of alternative service.The system of alternative service provides a resolution of the conflict between the obligation of military service and the basic right of citizen from the view of restricting the basic obligation of citizen.With the emergency appearance of the “conscience clause” and the right of peace,Chinese Mainland should establish the system of alternative service which is suitable for our national conditions,learning from the experience of England,Germany and Chinese Taiwan region.