On The Use Of Constitutional Labor Right In Trail

Chinese constitutional labor right contained the rights on politic ?social and civic duty in the past.In the stage of planned economy,government provided material aid and composed people to work by statute all the time.But nowadays,it relates to the complexity of liberty and social right only.The subject of right embraces all citizens who have the capacity to labor,government and public enterprises have constitutional obligation to them.Government should not force citizens to work,and advances employment rate,establishes vocational education,enacts bills on labor benefits.We should pay attention to the difference between labor right and property,and help farmers by appropriate system of ownership.Historically,labor right mingled with social security,but they are severed today,and employment injury insurance affiliate to labor right.Employment injury insurance is the creation of the duty that government should do for the labor and enterprise according to constitution.Subsistence right also means that government should establish this institution.On account of political factors,government delayed to publish regulations about labor right.Our congress was sluggish to legislate Labor code,andEmployment injury insurance is subjected to administrative statute.The method that Employment injury fund is raised is similar to tax,so congress should reserve the power to levy the fee Employment injury insurance.Regulation on work-related injury insurances is vague in its words and “48-hour item” is criticized.Supreme Court released several replies and cases to this regulation conservatively and subordinate courts improved the regulation by sentences.The replies of Supreme Court and the reasoning in subordinate courts' sentences have serious disadvantages.Regarding occupational injuries,judicial system do better than law-giver,but there is still room for improvement.Judges should take constitution to account when they try the case relating to labor right,and make efforts tocover the shortage of Chinese law system.In line with the item and spirit of constitution,to deal with the case on commuting injure.To the case on “48-hour item”,judges should take article 14 of the regulation into account.After that,judges should take brain death standard.About the problem that the retired attend Employment Injury Insurance,there isn't a criterion which could be taken nationwide.Judges should defer to local statute and regulation made by the department of local government.Besides,in the judicial district where isn't an available statute,judges should decree after examining the data of plantiff.