A Study On The Labor Right As A Constitutional Right

The labor right as a constitutional righ is facilitated to be known as the fundamental right of labor. There are many disadvantages in protection of the labor at level of the common laws in the areas of working life in China, It should return to protection of the constitutional level in order to fundamentally solve these problems. This paper explain the basic theories of the labor right as a constitutional right, And it discuss the legislation, administrative and judicial protections of the fundamental right of laboring in view of the national obligations. The department of Labor Constitution should be constructed proposed to strengthen the impact of the constitution on the labor right of working life. The articles in the constitution on the labor right would truly become "the basic order in the constitution of working life".The first chapter discusses the basic theory of fundamental right of labor. The core part of the concept of citizen means the qualification and status or right facing the state,and the concept of citizen evolve an association with the nation changing. The nation is not only on behalf of the state legal order, but also the legitimacy, or the responsibility to maintain order, protect civil right, preserve and increase social resources.There are two types of states such as the night-police state and the welfare state, and there is also the minimal country changing from the middle of the country to the active role of the state, as well as countries from the legislative to the administrative state and then to change the course of national justice. The role of the state has been changing under the specific time and environmental space conditions; The connotation of citizenship’s concept has been expanding in the process that has witnessed the changing role of the State.Citizens are hope to put their faith in the state, and the state need to fulfill its responsibility relatively to take care of citizens’life. Achieving the national objective promotes greater enjoyment of civil right. The constitutions in the condition of modern constitutionalism have brought a system protecting human right as the people’s constitutional right to freedom, when the labor right to freedom is the right to be out of a job for the workers.labor right stipulated in constitutions of some countries was protected different from liberty. The concept of social right and the classification of liberty and social right appeared. The purpose of social right was to eliminate the social evils associated with the development of capitalism such as unemployment and poverty.This required the state to actively intervene in social and economic life, to protect and help the weak. Therefore, the existence of social right required the state to assume the responsibility in solving social problems, and actively take care of people’s basic needs to fulfill the obligation. This concept of social right as fundamental right rising was a supplement to defects of liberty.They made the system of fundamental right more completely. There would be more social equity and justice appearing. When provisions in the constitution were fundamental right of labor norms, the owner of them could advocate to the state exactly what can get what kind of benefits?In the process of constitutionalism theory changing, the difference between the old constitutionalism and the new constitutionalism was how to intervene and what degree to interfere in the country specific to the area of labor right. In China we are building the Chinese characteristics socialism constitutionalism, also the "Constitutional China". Seen from the constitutional texts of our country, they appeared at first as the right to work free and professional freedom in the form of provisions in the constitution, then emerged as the right to work or labor right. The norms of labor right in the constitutions were these different types such as the right norm and right-obligation norm.How can the foreigners can become a body enjoying fundamental right of labor in addition to citizens? There are large differences in foreign regulations. Today, representation knowledge in our country is that the foreigners have become the body fundamental right of labor certainly. Now the foreigners have entered China in search of the "China Dream". In this context, that how to protect the labor right of foreigners worthies of our planning. It is affirmative that the state is obligation of the fundamental right of labor.The fundamental right of labor has a future-oriented nature, its content constantly evolving with the development of the times. The integrated content of the fundamental right of labor should include employment right, the right of labor remuneration, labor safety and health right, the right of rest and vacation, social security right, job security right, collective labor right,and professional freedom should be included inside.Therefore, the fundamental right of labor has a dual nature, one is a subjective right that individual may claim to the state, the other is the "objective value of the order" established by the constitution. The defensive right is a core function of the fundamental right as a subjective right. The fundamental right in our constitution, including labor right, contains the significance that the State shall not violate them. So they have the defensive right to this least.Beneficial right function originally derived from the social right is a major power of social right.The economic, social and culture right in our constitution have the beneficial function.The classical period of the fundamental right of labor is the labor at liberty, also freedom of occupation. However, later it was added a "positive freedom" in the contents, adding the nature of social right. Therefore, the fundamental right have both the nature of liberty and social right.The second chapter continues to explore the basic theory of the fundamental right of labor. First, we can interpret the effectiveness of fundamental right of labor by the general theory of fundamental rights. The effectiveness of fundamental right of labor has the impact on the state’s legislative, executive and judicial power. Its effectiveness directly binding on the legislators and the legislative process, prompting lawmakers to follow the principle prohibiting excessive and the principle of proportionality, controlling the exercise of its legislative discretion to prevent the infringement of labor right laws enacted. The executive power shall not only violate the fundamental right of labor, but also actively promote the realization of it. The fundamental right of labor is also directly binding all the activities of judicial power. There is level of effectiveness of fundamental right of labor.Whether "the third person effect of fundamental right" or " state action", those theory both support the idea that fundamental right not only against the state’s unlawful infringement, but also against a third party’s infringement of fundamental right. The new development of fundamental right level effectiveness has made it more detailed. In China, there are actual needs that the effectiveness of the fundamental right shall be expanded to the private territory. Otherwise it is not able to rule more and more serious employment discrimination in real life. Specific restrictions on the fundamental right of labor is limited in the analysis of the general question such as basis objectives, principles and forms of fundamental right.Referring to the analysis and comparison of restrictions on freedom of career in Germany and Japan,our country restrict the fundamental right of labor based on the analysis of the specific circumstances:not only for special occupational groups to limit the occupational freedom, but also on specific vocational qualifications, and to require prohibition discrimination in employment terms.The conflict and concurrence among the fundamental right of labor and other fundamental right are consistent with those among fundamental rights. Given the concept of conflict and concurrence, we can conclude that the principles of the conflict could be followed and the value of the fundamental right of rank and other methods of concurrence,as German-American and other countries solved them. In the field of fundamental right of labor, we specifically discuss the conflict and concurrence between the labor right and human dignity, right to life, equal right, environmental right. Guaranteeing the realization of fundamental right of the people is a national obligation. The obligations of states the fundamental right of labor corresponding to are to respect, protect and fulfill them. The state’s legislative, executive and judicial power commit those obligations.The third chapter discuss legislative protection for fundamental right of labor. First, we analyze that how legislature the fundamental right of labor become concrete after overviewing the basic problem of legislation and legislative power.The constitution is the fundamental law, the supreme law. And it should be "the best law". The constitution highlight its importance through its function implemented. Constitution entrusting is an important way for the constitution to be concrete. Through legislation the fundamental right of labor may turn to right of the common laws. The common laws can be labor legislation, criminal law and other forms of legislation. The constitution and labor legislation is actually influencing each other.Labor legislations must be constitutionality. Labor legislations can have a positive impact on the improvement of the constitution. In fact, the department legislation is affecting the constitution to be modified and improved by a variety of ways. The laws protecting the fundamental right of labor, whether it is domestic labor legislation, or international labor legislation, have major impacts. In this chapter, not only the history of labor legislation in China is briefly outlined, but also the typical labor legislations of these western countries such as Britain, Japan, the United States are summarized in description.We can discuss and understand how to optimize labor legislation through learning the advanced experience of foreign countries based on a vertical, horizontal comparison of labor legislations.The possible pathes are not only the conversion of legislative model, but also the optimization of legislative process. The legislative model switches controlling model to service mode, active legislation to passive legislation, and adopting responsive law process optimization through the expansion of public participation, rational treatment of experts and interest groups in legislative requirements. Basic labor right is the core of the legal basis of labor conditions. Through labor legislation and should be transplanted to the appropriate reference and determine the minimum wage and other labor standards, assess the effects of labor legislation, improvement, modification and interpretation by improving the quality and effectiveness of labor legislation.The practice of "administrative state " in western countries has its highly efficiency, but there may be variants. The beneficial function of the fundamental right of labor corresponds obligations of the government’s benefit administration. Such obligations are fulfilled by general and special bodies. Whether the institutions in the United States, Britain, Japan, or in China, South Korea, Singapore, are primarily through job training, employment assistance and labor supervisory system to perform duties. Having introduced and compared institutions in the United States, Britain, Japan and other countries on the basis of labor supervisory system, we can summarize the basic issues of labor supervision and improvement ideas for it.The common regulation in administrative protection of labor right is the controlling of administrative discretion. As for the administrative protection of the fundamental right of labor, supervision systems include representative body administration, administrative supervision, etc. In particular, it can be achieved through the work of administrative review.Administrative protection of labor right for the existing problems should be improved through the reinventing government, and setting up new institutions,clarifying the administrative law enforcement system, strengthening penalties, improving citizen participation and other ways to implement them.Chapter V discusses the judicial guarantees in the fundamental right of labor, carding achievements and shortcomings which the common laws achieve to protect the labor right, and stating the possibility of constitutional relief for the fundamental right of labor. Justice is unique in solving dispute.The main tasks of the Judiciary are to review the constitution or law has been a faithful implementation. In the exercise of judicial power, there are Judicial Activism and Judicial Restraint existed. Reasonable choice of the role of judicial power can help us protect the fundamental right of labor. Judicial Activism in the United States,India and other state had successful precedents. Judicial Activism may be applied in China, but it should be adhered to the unique content with Chinese characteristics.The judicial relief of constitutional right should be conducted on two levels such as the constitution and common laws. The common law procedure for relief is given priority following the principle of exhaustion of legal remedies.The common law procedures guaranteeing the fundamental right of labor are the labor dispute litigation, labor administrative litigation and labor criminal litigation. There are common courts and specialized courts for trial of labor justice model in labor dispute litigation. The United States, Japan and other countries are taking the ordinary courts to hear cases of labor disputes which is known as ordinary courts mode. And countries such as Germany and France have taken the specialized work of the labor Judiciary as the trial mode. Trial of the judiciary as specialized labor model has its specific advantages. Some countries have given up their normal mode and turn to the specialized labor courts judicial model. What kind of a country’s labor litigation mechanism is adopted by the State according to its own characteristics and requirements to be determined. There is no determined standard. Our country should establish a special labor court that is the feasible way.Labor dispute litigations are received in China at a very low cost. And the settlement of labor disputes has been following the mediation-oriented principle and giving full play the function of mediation. Labor administrative litigations in China are mainly labor and social security type of administrative cases. Protections of labor right in judicial practice in China are specific for either by the labor dispute litigation or labor administrative litigation which can work to defend the labor right. This is the so-called line of civil cases and administrative cases. The proceedings trend is that workers have abandoned the labor dispute litigation and turn to the labor administrative litigation. Labor criminal litigation is for serious criminal violations of labor right by a criminal remedy. It shall be strictly in accordance with the provisions of the Criminal Code.In general, the existed problems of common law procedural relief are that cases overwhelming the trial, the existence of institutional barriers, and so on. Those problems can be settled by building legal counsel system. Judgments of the courts having been invoked constitutional provisions or their spirit are "abide by the constitution" to make up for inadequate legislation and they do not be constitutional review which constitutional scholars expected.The constitutional right as the labor right in the end is a programmatic right, an abstract right, or a specific right? Constitutional scholars in Japan have had long-standing dispute with "specific right theory" represents the future of this social development, the violation of labor right for relief through the trial is granted in the constitution. So whether it is the right of freedom or of social nature, both have justiciablity. It is possible to meet the "justiciablity" of all manner required to formulate economic and social right of the treaty provisions in certain international conventions. In India, South Africa, there are practice for social right of constitutional litigation. When the social right possess the "justiciability", all the fundamental right in the constitution have "judicial beneficial function" that the judicial relief requested, while the country’s "judicial relief obligations" are the absolute nature of State obligations.Therefore, the fundamental right of labor should be actionable in principle. The phenomenon the fundamental right of labor is non-actionable is temporary. It can be gradually eliminated by law. Thus fundamental right of labor has suability that is applicable to constitutional relief. Judicial review system is the most basic constitutional safeguards system, and is a regular security method. There are basic types such as a review of the specialized agencies, a review of the ordinary courts and a review of representative organ. The constitutional petition included in the constitutional review system has an important value in the protection of fundamental right of labor.The aforementioned constitutional relief system being basically virtual deposition has demonstrated the existed shortcomings. It should be perfect. The main path to be perfect is for the implementation of the universal existed problems. At present, the power of judicial review is granted to the court that is not feasible. Only the combined system the legislation law contains which the courts can put forward unconstitutional questions and the organ in the NPC Standing Committee determines to propose constitutional review is improved that could solve the problems. Specific to the improvement, it can be enhanced by setting the special review bodies, establishing standards of constitutional review and other means in carrying out. Of course, the constitutional review system could have been developing. There would be made the transformation. The last chapter proposes the discuss of the department constitution standing on the interpretation in the German law which establishes a department of labor constitution. It takes the labor right in the constitution as a fundamental right seriously. This strengthen the impact of the constitution on working life that become the basic order of the constitution in working life. It can be said that the most prominent function of labor constitution is that has been produced the system of constitutional norms.