【作者】 王国锋；

【导师】 姚建宗；

【作者基本信息】 吉林大学 ， 法学理论， 2010， 博士

【摘要】 结社是多数个体基于特定联结纽带结成具有某种共同价值关系社会群体的行为。自愿群体与强制性群体是人类社会两种基本结社形态。结社自由是根据个体意志结成自愿群体的选择行为不受强制。结社权是个体自主联合的自由不受制度和他人强制并受到国家保障的权利。结社权具有消极权利、个体权利和公民政治权利的性质,同时具有道德权利和法律权利的双重人权属性。结社权包括群体形成权、自治权、成员身份权、结社选择权和司法救济权。结社权在个体生活方面具有维护个体尊严、确认自我身份,强化群体认同,满足个体需求,实现个体发展、反映体现善与价值多元性的好生活观念和实现自由社会的美德实践以及促进正向情感的增进等价值。在社会公共领域中,结社权具有强化民主政治、建构法治社会、维护权力分立、促进社会自治和推动公共治理的社会政治功能。允许根据基本权利、普遍道德和公共利益的道德理由对结社自由进行限制性立法。应当在保障和鼓励公民自由结社立法精神指引下,建构符合普遍人权原则和现代法治理念的结社权利制度和法律保障体系。更多还原

【Abstract】 Association is the most connected individual bond under specific relationship between the formation of a common value of the behavior of social groups. Formed by the association behavior of groups, including voluntary groups and mandatory groups. The Voluntary group is formed according to individual wishes and requirements . Means clustering process of the individual to choose. Voluntary groups have been formed out of individual bonds congenital mandatory restraints. Means that individuals can consciously and with people willing to joint. Association with social groups, relationships of commonality and the value, structure, stability, continuity and co-principal of the complex and other characters. Freedom of association from a mandatory association to reflect the strengthening of individual independence and self-consciousness. Freedom of association means that according to the will of individuals to form voluntary groups of independent choice free from coercion. Bond linking the individual to choose and freely decide what they want ownership of the group. Freedom of association through the legalization of the system Theoretical study history, to grasp the right of association formation and development of ideological and institutional continuity and mobility. Presents a comprehensive right of association to the universal human rights from privileges, from the natural right to the constitutional rights of the historical context.The right of association is a voluntary association of free individuals from the system and other enforcement and the rights guaranteed by the State. The right of association as a human rights system is a set of rights by the rule system pose a complex set of rights, or rights. Including group formation, autonomy, membership, to choose the right of association and the right to judicial relief. These rights protect the individual from the whole joint free from the voluntary system and others mandatory. From others and the system in the sense of mandatory right of association with the negative nature of the right. Citizenship and political participation in a sense, the right to the right of association with the first generation of human nature. Based on the theory of human rights in liberal nature of the rights with individual. The right of association also has to be natural and moral rights and legal rights of the double positive attribute of human rights. The right of association and expression, freedom of religion mutual support between the dependent and in the protection of dignity of the indivisibility.The right of association with the realization of identity self-identity, practice the virtues of a free society, reflects the diversity reflects the good and the value of the concept of the good life, to meet the diverse needs of and comprehensive development of individual freedom in the individual areas of life. Civil association is to maintain the viability of society and the integration of people into public life of the bridge. The right of association with the promotion of democracy, construction of the rule of law, the maintenance of the separation of powers, social self-promotion and modern society in promoting public governance in the socio-political field. The right of association among people to be able to avoid separation and the consequences of social disintegration, and makes people more fully participate and integrate into the community in public life.Positive rights as the right of association is not absolute unrestricted freedom. Allowed under the basic rights, universal morality and the moral grounds of public interest to limit freedom of association. Reservations should be based on the principles of law, the principle of Purpose, legal interest the principle of proportionality, least against the principles and principles of judicial review to limit the right of association. Limit the cost of the right of association to protect their interests can not be large. China’s protection of the right of association exists in reality imperfect law system of the right of association, association management system is unreasonable, civic association and lack of independence, community self-government functions are not sufficient, the association has been established on the lack of effective supervision and violation of the right of association without effective judicial remedy and so on. Comparative analysis of other countries through the legal system of the right of association,Chinese law should be strict change management and control of civic associations oriented spirit of the legislation. In China, freedom of association law elements should be clearly the right of association, changing community management, improve tax benefits system and the community supervision system. China should protect and encourage the citizens in the spirit of freedom of association under the protection of human rights principles and the construction to conform to modern ideas of freedom of association rights of the rule of law system and legal security system.更多还原