论迁徙自由与二元户籍制度
发布时间：2018-10-16 20:33
【摘要】： 迁徙自由作为一项基本人权,广为世界各国宪法、法律以及国际性人权文件所接受。随着我国社会主义市场经济和人权事业的发展,在我国确立迁徙自由也成为全社会高度关注和宪法亟待解决的根本性问题,因此,本文在借鉴各国迁徙自由立法经验的基础上,重点对国内迁徙自由进行分析,以期更具现实意义。在我国,迁徙自由问题极为复杂,它涉及到经济和社会生活的各个方面,但从根本上是受到以“二元户籍制度”为核心,包括教育、住房、劳动就业、医疗保险、社会保障等制度在内的“二元户籍制度体系”的牢牢束缚。鉴此,在我国实现迁徙自由,最核心、最关键的问题是剥离“二元户籍制度”及其附着利益的限制,寻找一条切实可行的道路。 迁徙自由指宪法和法律规定的自由离开原居住地到外地旅行和定居的权利,它包括国际迁徙自由和国内迁徙自由。在实行迁徙自由的国家,迁徙与迁徙主体—人,是密不可分的,在法律许可范围内,只要人发生变动,就认为迁徙行为当然成立。而我国却不然,在一开始对迁徙进行定位时,就已经偏离了其应有的界定方向。我国认为只有户籍登记地的变动才是迁移,而忽视了迁移的主体—人,不管人在何方,也无论多长时间,只要没有发生户籍登记地变动,就不承认已发生的迁移事实。由此,我国迁徙自由研究伊始,就与户籍制度粘连在一起分不开了。实际上,迁徙自由和户籍制度之间没有必然联系,迁徙自由因其独立的权利品性而存在发展,它要受到保护的最根本原因是:迁徙自由是一项国际公认的基本人权,它作为一种人身自由权,是主体享受其他权利和自由的前提和基础;另外,迁徙自由具备了作为良法应有的优秀价值品质—正义、秩序、效率、社会和谐等。因此,迁徙自由毋需质疑应当受到法律保护。也可以这样说,正因为迁徙自由顺应了人类社会发展和进步的方向,才能够成为任何力量都无法阻挡的权利,因而它也终将在我国变成现实权利。 迁徙自由的实现并不需要盲目等待经济发展到非常发达的程度。世界上绝大多数国家规定了迁徙自由就是很好的例证,这其中并不乏经济欠发达的国家,经济发展不平衡的国家,也不乏人口密度大的国家,他们均本着诚恳对待“人的基本权利”的态度,在商品经济发展伊始,就从各自的国情出发,用不同方式对迁
[Abstract]:As a fundamental human right, freedom of movement is widely accepted by constitutions, laws and international human rights documents. With the development of socialist market economy and human rights in our country, the establishment of freedom of movement in our country has become a fundamental problem that the whole society pays close attention to and the constitution urgently needs to be solved. Therefore, this paper draws lessons from the legislative experience of various countries on freedom of movement. Focus on the analysis of internal freedom of movement, with a view to more practical significance. In our country, the issue of freedom of movement is extremely complex. It involves all aspects of economic and social life, but it is fundamentally governed by the "dual household registration system", which includes education, housing, employment, medical insurance, Social security and other systems, including the "dual household registration system," the firm shackles. Therefore, in order to realize the freedom of migration in China, the core and the most critical problem is to peel off the "dual household registration system" and the restrictions of its attached interests, and to find a feasible way. Freedom of movement, which includes freedom of international and internal migration, refers to the constitutional and legal freedom to travel and settle outside the country of residence. In a country where freedom of movement is practiced, migration and migration subject-person are inseparable. Within the scope of the law, as long as the person changes, the migration behavior is certainly established. But our country does not, at the beginning of the migration, has deviated from its due direction of definition. Our country thinks that only the change of residence registration place is migration, but neglects the subject of migration-person, no matter where the person is, no matter how long time, as long as there is no change of residence registration place, the fact of migration that has already taken place will not be admitted. Therefore, at the beginning of the study of freedom of movement in China, it was inseparable from the household registration system. In fact, there is no necessary link between freedom of movement and the household registration system, and freedom of movement develops because of its independent right character. The most fundamental reason for its protection is that freedom of movement is an internationally recognized fundamental human right, As a right of personal liberty, it is the premise and foundation for the subject to enjoy other rights and freedoms. In addition, the freedom of migration possesses the outstanding value qualities due to the good law-justice, order, efficiency, social harmony and so on. Therefore, freedom of movement need not be questioned should be protected by law. It can also be said that because the freedom of movement conforms to the direction of the development and progress of human society, it can become an irresistible right of any force, so it will eventually become a real right in our country. The realization of freedom of movement does not require blindly waiting for the economy to develop to a very developed level. The fact that the vast majority of countries in the world have provided for freedom of movement is a good example of this. Among them are countries with underdeveloped economies, countries with uneven economic development and countries with high population density. All of them are sincere in their attitude towards "fundamental human rights", and at the beginning of the development of the commodity economy, they set out from their own national conditions and use different ways to move.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D631.42;D921
[Abstract]:As a fundamental human right, freedom of movement is widely accepted by constitutions, laws and international human rights documents. With the development of socialist market economy and human rights in our country, the establishment of freedom of movement in our country has become a fundamental problem that the whole society pays close attention to and the constitution urgently needs to be solved. Therefore, this paper draws lessons from the legislative experience of various countries on freedom of movement. Focus on the analysis of internal freedom of movement, with a view to more practical significance. In our country, the issue of freedom of movement is extremely complex. It involves all aspects of economic and social life, but it is fundamentally governed by the "dual household registration system", which includes education, housing, employment, medical insurance, Social security and other systems, including the "dual household registration system," the firm shackles. Therefore, in order to realize the freedom of migration in China, the core and the most critical problem is to peel off the "dual household registration system" and the restrictions of its attached interests, and to find a feasible way. Freedom of movement, which includes freedom of international and internal migration, refers to the constitutional and legal freedom to travel and settle outside the country of residence. In a country where freedom of movement is practiced, migration and migration subject-person are inseparable. Within the scope of the law, as long as the person changes, the migration behavior is certainly established. But our country does not, at the beginning of the migration, has deviated from its due direction of definition. Our country thinks that only the change of residence registration place is migration, but neglects the subject of migration-person, no matter where the person is, no matter how long time, as long as there is no change of residence registration place, the fact of migration that has already taken place will not be admitted. Therefore, at the beginning of the study of freedom of movement in China, it was inseparable from the household registration system. In fact, there is no necessary link between freedom of movement and the household registration system, and freedom of movement develops because of its independent right character. The most fundamental reason for its protection is that freedom of movement is an internationally recognized fundamental human right, As a right of personal liberty, it is the premise and foundation for the subject to enjoy other rights and freedoms. In addition, the freedom of migration possesses the outstanding value qualities due to the good law-justice, order, efficiency, social harmony and so on. Therefore, freedom of movement need not be questioned should be protected by law. It can also be said that because the freedom of movement conforms to the direction of the development and progress of human society, it can become an irresistible right of any force, so it will eventually become a real right in our country. The realization of freedom of movement does not require blindly waiting for the economy to develop to a very developed level. The fact that the vast majority of countries in the world have provided for freedom of movement is a good example of this. Among them are countries with underdeveloped economies, countries with uneven economic development and countries with high population density. All of them are sincere in their attitude towards "fundamental human rights", and at the beginning of the development of the commodity economy, they set out from their own national conditions and use different ways to move.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2006
【分类号】：D631.42;D921
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