结社权实现的历史语境分析

The Historical Context of Freedom of Association

结社的行为先于法律权利,合群是人的本能。结社的法定化,将其固定为一项公民的法定权利。随着政治法律的现代化,结社权被认定为一项普遍人权,但在不同的意识形态下,对于结社权的认知和结社权实现的态度仍存在一定的差别。不同历史语境下,结社权呈现不同的形态。

Human behaviors of being associated precede any legal rights,as being gregarious is a human instinct.Thus right to freedom of association is accepted as individual human right to come together with other individuals and collectively express,promote,pursue and defend common interest.Compared with other basic civil rights,rights of association have their own specialty.On one hand,the rights of association is largely restricted by the Chinese traditional politics and the current relationship between the Party system and the State;on the other hand,in order to unify the people and have them under control,it is imperative to accept and recognize legally some corporate entities to help the Party,so despite the fact that contradictions between the liberal constitutionalism and the socialist political system are acute,there exists another way to solve the conundrum of Chinese association,which is"corporatism":through mutually conferring rights on it by the State and the Society to establish mutual trust to keep the people associated.Because right to association has possessed many layers of meanings in modem times,and as the right to association is very sophisticated and as a basic political right it may pose some possible threats to the polity,there are restrictions and forbidden zones,even though the right to association has been provided in the Constitution.Two reasons can account for these restrictions and forbidden zones.On one hand,the protection of private rights has been intensified;the other concerns such the public rights and the ideology of protection.Therefore,a series of administrative regulations have been prescribed to regulate the freedom of associations and the corporate entities.Strict limitations have also been imposed upon the association.Contradiction and conflicts have increasingly arisen from the freedom of association.In other words,the need to be associated by the public is not compatible with the strict government regulations.To regulate or to de-regulate,becomes a hard nut to crack.As for the people’s increasing need to be associated,the government’s prohibition runs counter to the mainstream development of the society,and it is also quite a disgrace not to implement the constitutional provisions whether from the constitutional perspectives,or from political or international perspectives.Therefore,the real question posed before us is to find out the solutions to freedom of association.As no legislation has been prescribed with regard to freedom of association at present,it is urgent to put the legislation on the freedom of association on the national agenda.In the future,any lawmaking about freedom of association shall not follow the former Soviet shock model to avoid the drastic changes and the permeating influence upon the general public.We need to strike a balance between the social autonomy and the state control to follow the lawmaking model of corporatism.We need to tolerate the self-development and expression of their own interests by the corporate entity,premised that the government can exercise the control of the national corporate entities.