On The Justification For The Establishment Of Social Rights And Its Realization

Rights is the basic category of law and social rights is the basic category of sociological jurisprudence. Modern China, where the concept of social rights has been strengthened and there is more and more need to realize it, has witnessed the rapid development of social legislation obligated to guarantee social rights and the booming of sociological jurisprudence theory in the environment of social legalization. Social rights is the logical starting point and the core category of sociological jurisprudence and the social law guarantees the social rights of citizens.The concept of social rights, deduced from historical dimension, came from the idea of human rights and gradually developed into the important content and part of the idea of human rights. We may say that the forming and development of the concept of social rights has deepened and enriched the connotation of human rights.How do the key points of human rights define the relationship between citizens and their nations? All the different ideas towards the relationship result in the conflicts about the connotation, nature and category of social rights. This paper tries to define the social rights as: citizens have the rights to request the country to act positively in order to help and aid social disadvantaged groups and accomplish the aim of social fairness and justice. The paper also holds the idea that social rights has the dual natures of moral rights and legal rights, the dual properties of the subjective rights and the value of objective order, the dual functions of defensive rights and beneficial rights, and the dual effects of positive rights and negative rights. From the perspective of rights structure, the main rights body of social rights is the whole society members,especially those who, including individuals and groups, are in the weak position in economy. The main obligation body of social rights is the country who needs toII provide methods for and support disadvantaged groups to obtain their social welfare and social security. The basic content of social rights is that citizens request to the country for its positive actions to help and aid them in order to guarantee their lowest living condition and so on.Social rights is not only a kind of thought theory about rights, but also an object of legal confirmation. The legal confirmation of the social rights needs to be carried out through three aspects of the transformation of the international treaty in domestic law, the implementation of the national obligation on the constitutional level and the specific content of social legislation. Firstly, Convention on Economic, Social and Cultural Rights can serve as a material source to fill the gaps of domestic legislation.Especially the collective labor rights such as the right to strike, the right of the freedom of association and so on, should be established in the domestic law. Secondly,in the constitutional level, state obligations can be carried out through the three aspects of system security, organizational and procedural guarantee and the legislatures. In the level of social legislation, even though the compilation of Code of Social Law is seen as an idealistic expectation, it is the characterization of systematization of the legislation of social laws. Therefore, the legislation related to social benefits and labor standards legislation should be improved to serve as the legislation basis for realizing social rights.The dynamic factors which promote the realization of social rights and the resistance factors which impede the realization of social rights are coexisting. The realization of social rights are the basic appeal for improving people’s livelihood,which carries the basic requirements of social fairness and justice, and it is even the core objective of the protection of human rights. All these positive factors have greatly promoted the realization of social rights. On the contrary, the realization of social rights is prevented by many drag forces from routes, legislation and relief.Besides, the realization of social rights is not only a question of law, but also a question of society and can even affect economic development. If the realization of social rights is examined in the situation of society, policy and economy, it is easy to figure out that encouraging non-governmental organization to develop its socialIII function can enable it to undertake some national responsibilities. The focus on the mutually-promoting relationship between social rights security and economic development benefits to balance the relationship between fairness and efficiency in the process of rights realization. Similarly, social policy can be a virtuous catalyst of the realization of social rights.With the population policy adjustment and economic new normal, social rights protection is faced with new tasks, of which the population policy aims to solve the practical problems of the shortage of labor and pension shortage caused by the aging of population. It is proved that the introduction of the two-child policy has little policy effect that population are still growing slowly. The government should not only encourage the breeding of young people and the old people to find a job, to improve the socialization of old-age service system, but also strengthen the protection of the rights and interests of special groups such as pregnant women, the elderly, which will be conducive to the implementation of the population policy. Especially at the time when the delay retirement policy is introduced, emphasizing the protection of social rights is of great practical significance. Besides, all the troubles caused by economic new normal are concentrated on the contradiction between companies and employees,which poses a challenge to the balance of the interests of labor and capital and the weigh of rights and interests. In economic downlink phase, the improvement of social security structure should be based on the guarantee of financial expenditure of social security, which helps to enhance the efficiency of social security. And the social rights realization mechanism, with the core of labor social coordination mechanism, social stratification safeguard mechanism and economic measurement and evaluation mechanism, should be improved to solve many problems occurring in the economic downturn and realize the common development of social rights security, improvement of people’s livelihood and economy.Social rights relief is the last barrier of the realization of social rights. Currently,social rights relief also mainly rely on the traditional economic civil and administrative remedy ways. Limited by many factors such as subject of litigation,scope of the appeal and so on, social rights relief is frustrated. In the field of privatelaw remedy, the cases where social rights, as constitutional rights, is applied directly or indirectly to the field of social rights is still rare. Many cases are still converging on the field of civil suits and it can be considered to establish an independent social court in the civil trials, rather than a social court, specially hearing the relevant cases concerned social rights to make trial more efficient and professional. In the field of public law, social rights serves as a kind of procedural rights, and administrative legislation rules should be tightened in the respect of citizens’ minimum subsistence payment request both in entities and procedures. By improving administrative litigation system, efficient administrative remedy can come true. Finally, public interest litigation should be promoted positively to be applied to the field of social law,in the expectation of breaking through the limitations of the traditional litigation to promote the realization of social rights.