Research On The Legislative Guarantee Of The Business Freedom Of Mobile Vendors

During the period of COVID-19,the unique role of the vendors economy in supporting employment,increasing income and invigorating the market has been recognized and affirmed.Loosening relevant controls and guaranteeing the business freedom of mobile vendors has once again become one of the hot issues concerned by public opinion and government policies.Mobile vendors are de facto rather than statutory market subjects,and the freedom to business as a right implicit in constitutional provisions such as the right to operate autonomously and the right to work,which can be considered a fundamental right,creates a unique right to freedom.Using the two-dimension model of "freedom right--social right" to analyze,it has obvious characteristics of freedom right and social right at the same time.Examining the realistic legislative guarantee degree of this unique right of freedom not only has important value for resolving the realistic regulatory conflicts fundamentally,but also provides a unique perspective for observing the level of legal guarantee of the whole economy.Based on the above-mentioned research background and purpose,the empirical analysis of legal norms can be taken as a research path.After searching,collecting and analyzing the empirical materials of relevant legislation,it is found that there are three salient features:firstly,the legal norms are mainly concentrated in the field of food safety legislation,with less legislation in other fields;secondly,the legal norms are mostly found in local legislative documents,mainly provincial local regulations and provincial government rules,with fewer specific adjustment norms in laws and administrative regulations;thirdly,the relevant legal norms are mostly norms of restriction of rights,with fewer norms of simple protection of rights.From the perspective of the relationship between the restriction and protection of fundamental rights,reasonable restriction is also a legislative guarantee,especially for the freedom of mobile vendors,which has been denied for a long time in fact.Therefore,taking the legitimacy and rationality of local legislation on food safety to the regulation of mobile street vendors’ freedom of business as the object of empirical research is not only limited by the legislative reality,but also necessary for the realization of research purposes.As a basic right of freedom,the theoretical for legislative restriction on the business freedom of mobile vendors is the boundary theory of rights,the normative basis is the relevant legal norms with the core of Article 51 of the Constitution,and the substantive basis is the negative externality associated with the business activities of street vendors.The form of legislative restriction should be based on the actual use of the principle of differentiated legal reservation,and the degree of justification of legislative restrictions can be measured in accordance with the theory of balance of interests,the principle of non-damage to the substance of rights,the principle of proportionality,the principle of equal protection,the principle of rights relief and so on.According to the empirical research materials of relevant legal norms,it can be found that the relevant local legislation contains problems of ultra vires legislation,violation of the provisions of the superior law,violation of the principle of legal clarity,violation of the principle of equal protection,violation of the principle of proportionality,etc.These form undue restrictions on the business freedom of mobile vendors.At the same time,the legal safeguard measures related to the restriction of rights are not systematic.In this regard,suggestions can be put forward to strengthen the legislative guarantee of the business freedom of mobile vendors from the following aspects: adhering to the purpose of "restriction for the purpose of protection",implementing the principle of equal protection,promoting the due procedure of interest measurement and realizing the clarification of the principle of proportionality.