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Research On Judicial Remedy Of The Right To Social Security

Posted on:2013-05-03Degree:DoctorType:Dissertation
Country:ChinaCandidate:L F FuFull Text:PDF
GTID:1266330401979185Subject:Economic Law
Abstract/Summary:PDF Full Text Request
The focus of Right to Social Security as the most basic human rights is the right to life of the people who are sick, old, unemployed and disabled, who loses the ability to work under various disaster situations, and the right to development based on realization of the right to life. As a basic human right, its justification stems from the inevitable requirement to maintain their own survival and dignity of human beings in large-scale socialized production and the market economy conditions. Social security is one safety tool to vulnerable groups in society with the rapid development of industrialization and mass production, also called "social safety net", Social security deeply expresses people’s value and concerns to the right to social security from scratch, from the poverty relief measures to the modern social insurance act.The right to social security written on the constitutional text to be translated into concrete and realistic right can be obtained by means of judicial remedy. Although the justiciability of the right to social security is a huge disagreement and and theoretical debate, through the investigation of the cases of the right to social security in India and the United States, and Germany, and France, as well as regional human rights courts,a definite conclusion is that the right to social security is justiciable. Study on the right to social security and judicial relief has practical significance for building a harmonious and equitable society. Market economy pursues efficiency and benefit maximization, and wealth and opportunity are configured according to spontaneous regulation of market rules, and equality is formal, the result may not be fair and justice. Losers of the competition or the social vulnerable groups do not have access to equitable distribution of wealth and opportunity, which leads to social polarization between the rich and the poor and social disharmony. The right to social security is a kind of social rights, its value is the overall social fairness and justice, and it will achieve the purpose of substantive justice through the redistribution of social wealth. At present, China’s social gap between the rich and the poor is being expanded, and the Ginness coefficient has exceeded the social security line, which poses a serious threat to the construction of a harmonious society and social stability. Research on the right to social security and the judicial relief mechanism can provide a realistic response strategy to narrow the gap between the rich and the poor and to resolve social conflicts.The right to social security is fundamental human right and the constitutional right of citizens, and the right means relief, traditional remedies measures on the right to social security are mainly confined to the labor dispute mediation, arbitration and civil proceedings and administrative reconsideration and administrative litigation procedure. This private law and public law relief mechanism is difficult to adapt to the social security rights disputes, with the nature of both the private and public law.On the one hand,it is necessary to improve and transform civil litigation and administrative proceedings under the existing legal framework, so that the right to social security as a general right can get relief by some measures, for example, by breaking through the traditional litigation strict parties provisions and the proper scope of acceptance to expand the scope of social security relief, and simplifying procedures, and reducing the parties’costs, and introducing civil and administrative public interest litigation system to fully relieve the citizens social security benefits. On the other hand, we should actively explore the direct basis of the Constitution as the court case trials or the establishment of unconstitutional judicial review, and confirm the right to social security as a constitutional right to get relief. Therefore, the introduction of constitutional litigation of social security rights is feasible and necessary. Path of constitutional remedies in China needs to make a choice. From our judicial practice, the judiciary in a few cases, consciously or unconsciously directly quoted constitutional provisions referee suit behavior, and indirectly applied constitutional rights norms referee suit behavior by expanding of common law interpretation, so as to realize the judicial relief of the constitutional rights. China is bound to change this ambiguous situation and introduce unconstitutional censorship in line with our actual situation, effectively to protect citizens’ constitutional right.The right to social security has social rights attribute with the characteristics of public and private law, the relief of the right to social security can not adhere to the traditional civil litigation and administrative proceedings. In the case of the ripe conditions, building our unique, specialized judicial relief mechanism of the right to social security is a must, and the principle of prompt, adequate and efficient relief should be reflected in the trial mechanism, program design, system protection and judicial relief to avoid the deficiencies of the traditional two-track remedies.China should improve the legal aid system, and develop public interest litigation to safeguard socially vulnerable groups to access to justice, and make the right to social security as a whole have access to effective judicial relief. Public interest litigation in China has not yet become the system, requirements, and implementation of public interest litigation in the field of social security rights, in particular, need legislate first to lay a legitimacy foundation. In addition, we should understand that the protection and realization of the right to social security involves one country’s political, economic, cultural, social factorsand so on,not just a matter of law. Relying solely on the legal remedy is insufficient to solve protection problem of the right to social security. Making full use of judicial remedies at the same time also requires the consideration of overcoming its limitations.
Keywords/Search Tags:right to social security, justiciability, judicial remedy, public interest litigation
PDF Full Text Request
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