论营业权入宪——比较宪法视野下的营业权

On Sales Right Recorded in the Constitution——From the Angle of Sales Right under Comparative Constitution

营业权是主体基于平等市场主体资格自由地、独立地从事以营利为目的的营业活动的权利。纵观各国宪法 ,在营业权的表达方式上 ,有自由权吸收方式、经济与财产自由包含方式、职业选择自由概括方式和营业自由表达方式等不同模式 ,在具体的立法体例上有宪法序言或总则宣示式、经济政策性原则条款式、公民基本权利条款列举式、总则宣示与公民权利列举相结合的模式等不同范式。因此 ,尽快把“营业权”(或“营业自由”)或视为公民的基本权利 ,或视为一项基本国策 ,或作为一项基本的经济原则 ,载入我国宪法 ,是今后宪法修改和人权保障的重要课题。

The sales right is a right that the civil subject possesses on the basis of equal qualification in market trading, engaging in business freely and independently for the purpose of seeking profit. Through analyzing the constitution of various countries in which the concept of sales right has been expressed in different modes such as the right of freedom absorbing approach, freedom of economy and poverty inclusion approach, summarizing approach through freedom of occupation and freedom of trade expression approach. As far as the detailed modules of constitution are concerned, there are different paradigms such as the modes of foreword or general principles declaration of the constitution, the articles concerned with principle of economy policy, and listing basic rights of the citizens' and declaration of general principle combined with the listing of civil rights. Therefore, sales right or freedom of trade is to be regarded as one of basic rights of the citizens' or a basic national policy or a basic economic policy and recorded in the Constitution, which is a significant subject in the revision of the Constitution and the safeguard of human rights in the future.