On Liberty Right And Its Legal Protection

Liberty right is a kind of right for individual to act without others' interference, especially a kind of demand for individual toward the country, requiring reasonable distance between public power and individual right, and certain conditions for the realization of individual liberty. In the ancient times when the concept of human rights has not yet been formed, liberty is memorized as inherent requirement of the nature of human beings in history. The development of liberty right proximately came through several periods: the ancient and middle ages - when the conception of liberty generated from political philosophy, jurisprudence and theology, the recent times - when its theoretical system began to shape benefiting from the revolution movement of thought and revolution of capital class, the modern times - when its centre altered into the legalization and systematization. The substantial value of liberty right lies on the resistance to the autocracy for the individual, hence the liberty right, based on the "individual-country" perspective, plays an important role in the construction of constitutional system. Meanwhile, as for human right system, liberty rights and it share the same sign of mature.The feature of liberty rights includes antagonism, which is the exclusion against government interference, service and welfare or coupling, that is, government's obligation to provide assistance. And the relationship between its right and responsibility is a one-way style. From the view of "individual-collective", admitted to be the subject of liberty right, individual is the basic condition of liberty right as a kind of human rights; on the contrary, it has been a new question since recent times for collective to be the subject of liberty right. From the view of "citizen - non-citizen - universal citizen", citizens are the absolute subject of liberty right, while non-citizens are the relative subject of that, and universal citizens are the common subject of that. Liberty rights can be divided into four categories according to different standards: positive-negative liberty right, liberty right in public-civil law, absolute-relative liberty right, and spirit-economic-personal liberty right.Since liberty is a requirement of human beings' nature, almost all of the due requirements can be represented by a kind of liberty rights. Considering the nature and tendency of these due requirements, liberty rights can be divided into five right-groups in this thesis: spirit liberty rights, personal liberty rights, political liberty rights, economic liberty rights and developing liberty right. The first one is the interspaces of human beings, whose counterpart is the free conscience activity; the second one is the out carriers of human beings, whose counterpart is the free body activity; the third is the requirement of harmony relationship between individuals and the country, reflecting the influences of citizen's conscience on the country; the fourth is the requirement of higher level in material life, reflecting the material requirements of citizens, especially the economic men; the last one a new type of liberty rights which involve the positive and negative factors and the liberty and development factors, reflecting an important tendency of liberty right.According to the categories of the protection of human rights, the protection mechanism of liberty rights can be divided into two groups: the international group and the domestic group. The international group includes the protection mechanism in the frame of United Nations and the local one organized from the human right conventions between continents. It has four components: the declaration of liberty spirit, the establishment of content of liberty rights, the expression of the principle of equality, and the construction of protection organization of liberty rights. At the same time, the domestic group is used more often and carries more responsibilities. The government should provide political protection systems for liberty rights, including democratic system, right of equality system, property system, and the prosperity of social organizations as the representative of individual liberty rights. As for the government, liberty right is the subjective rights for individuals against government, and also represents an objective rule, obeyed by all the governmental institutes. In addition, the basic mode for government to protect liberty right may involve the coordination of constitution and branch laws. After all, liberty is not only the destination of constitution, but also an important content.In China, the situation should be reasonably considered, since many problems emerged in practice, although we have built relatively all-round system. First, liberty has not been a common sense, although the liberty right is under the protection of the Constitution; second, the range of liberty right should be broaden; third, some rules may decline the liberty right; finally, the congress of our country has not yet ratify the International Convent on Civil and Political Rights(ICCPR). Hence we should focus on the system revolution in order to protect liberty right fundamentally.