Research On Constitutionality Control Of Social Rights Restriction

Social rights restriction theory is an integral part of the basic rights restriction theory.Social rights are not a single right,but a type of basic rights,a bundle of rights.Therefore,the connotation of the right to social rights needs to be extracted from the abstract level,and the relationship between the human and the state elicited by the constitutional paradigm of “rights-power” becomes the key to defining the connotation of social rights.At the level of “human”,social rights are manifested in the protection of human dignity;the pursuit of substantive equality;the realization of the full freedom of man;the pursuit of higher levels of happiness.At the “national” level,social rights are manifested in the synergy between state power and state obligations.The former is the feasibility condition for the realization of social rights,and the latter is the necessary condition for the realization of social rights.The combing of social rights extension adheres to the path of combining normism and functionalism to build a hierarchical rights framework:(1)The standard of living that meets the minimum dignity is the core content;(2)the right to work,the right to life and the right to education are the second level;(3)the third to form the right to health,the right to the environment and the right to culture(4)The rights of special groups,development rights,and marriage and family are the types of peripheral rights.Defining the connotation and extension of social rights is to limit the service of social rights.The theory of social rights restriction needs to clarify three groups of concepts: rights conflicts,ranks and restrictions;basic rights conflicts,formation and restriction;social rights formation and restriction.The formation of social rights is to determine the scope of the composition of rights.The limiting role is the intervention and influence of state power on rights.The specific connotations of social rights restrictions include the failure to realize social rights,the inadequacy of social rights,and the excessive realization of social rights.Any subject that restricts social rights should provide corresponding reasons from the theoretical or practical level to justify the restrictive behavior.In theory,the basic rights restriction theory is based on the method of “bringing the doctrine”,the effectiveness of the social rights clause on the norm is insufficient,the relationship between the public interest and the social right is vague,and the negation of the basic rights restriction element type causes the purpose of restriction.The restrictions on the ontology,the restrictive elements,and the unconstitutional obstacles are considered to be different from the social rights.Therefore,it is necessary to supplement the basic rights restriction theory with social rights as the entry point.In practice,excessive protection of social rights threatens social development: the realization of social rights is conditional,and the state should intervene within reasonable limits;the theory of resource finiteness requires limiting human needs and safeguarding public interests;and the abuse of social rights will also cause social motivation,wasting public resources and even infringing on the right to freedom.Although there are static standards and dynamic development standards for the realization of social rights,the positive evaluation system has many disadvantages,which leads to different degrees of controversy.The restriction theory contains the theory of rights and can protect the social rights in reverse.Help to form an evaluation system with three levels of realization.The limiting elements of social rights can be examined from the two levels of normativeism and functionalism.The normative social rights restrictions are presented in international human rights conventions,constitutions and specific legislation.First,the restrictions in international and regional human rights conventions can be divided into generalized restrictions and differential restrictions.The two types of restrictions differ in quantity,content setting,rights type separation,and word selection.The limiting elements included in the restrictions have the minimum core standards,legality,purpose,subject,legitimacy,and functional elements.The above elements have strong,medium and weak applicable strengths,and there are also vertical and horizontal distinctions in the applicable steps.Second,the constitutional restrictions on social rights present different attributes and effects.The limiting elements can be divided into internal limits and external restrictions: the inherent limiting elements include intrinsic restrictions,subject restrictions,subject restrictions and guarantees;external restrictions include public interests,the rights and freedoms of others,and Other restrictions imposed by law,etc.Among them,the principle of “adapting to the level of economic development” stipulated in Article 14,paragraph 4,is a typical limiting factor.Third,the restriction of legislation on social rights is mainly the limiting role in the process of social rights.The specific forms of legislation restricting social rights include connotational restrictions,restrictions on the enjoyment of the subject,restrictions on the protection of content,provisions on obligatory provisions,and inaction in legislation.The degree of realization of social rights is also restricted by realistic conditions and social environment,such as economic and social development,national fiscal and governance capabilities,and social ideology and cultural background.The level of economic and social development is the basic element of the objective restriction of social rights,which determines the overall degree of social rights and affects other objective constraints.Social rights require the state to fulfill its payment obligations and invest considerable financial expenditures.Therefore,the scale of state financial payment and the limits of national fiscal revenue and expenditure limit the realization of social rights.Therefore,the legal system should be improved from the height of the constitution,the dynamic balance between the taxation justice and the protection of social rights.The influence of national ability on the quality of social security is the political limiting factor of social rights.The limitation of western political party politics affects the continuity of social security guarantee policy.The lack of national legislative ability leads to the imperfect social rights legislation,and the government's ability to exercise inertia affects social rights,the quality and efficiency of the payment,while the relief capacity of the traditional judiciary may hinder the improvement of the degree of social rights.In addition,the realization of social rights is also restricted by cultural aspects such as legal traditions and rights.Different ideologies have a direct impact on the recognition and realization of social rights,while traditional religious and cultural concepts may result in the enjoyment of social rights.Insufficient subjects lead to restrictions on citizens' equal access to social rights.Legislation and behavior that restrict social rights are subject to constitutional review and control.Generally speaking,the degree of constitutionality control of normative restrictive elements is higher than that of objective restrictive elements.Therefore,the objective restrictive elements of social rights should seek the standardization basis from the constitutional text as much as possible,thereby improving the realization of social rights and restricting the abuse of public power.The degree of standardization of the objective restrictive elements of social rights has a certain sequence of high and low,namely,tax restrictions > economic and social development levels > national capabilities > culture and ideology,they are difficult to standardize and cannot be standardized.On the contrary,the objective restriction factors have the meaning of independent existence.The constitutional control path generally advances the objective restriction elements into the public domain through constitutional negotiation,promotes the realization of the rule of law control by public democracy,and promotes the modernization of state ability with the constitutional concept to "reform the constitution".The spirit guides economic and social development,and establishes a human rights and rule of law education system with constitutional education as the core.As far as the normative and restrictive elements of social rights are concerned,they should rely on a dialogue-style constitutional review model and use the corresponding constitutional review principles and review criteria to achieve constitutional control.China's constitutional review system is still under construction.In order to avoid the drawbacks of the traditional review model,the review mode of the dialogue between the legislative,judicial and constitutional review bodies applies to the constitutional review of social rights restrictions.The constitutional review of social rights restrictions requires its own review principles and review criteria: the review principles mainly include the formal review principles consisting of legal reservations and due process,and the core content of social rights that conforms to human dignity is unrestricted and proportional.The principle of substantive examination,as well as the review of legislative inaction;the construction of the constitutional review benchmark mainly draws on the three-level review benchmarks of the US hierarchical triple review benchmark and the German proportionality principle,and then the rights of social rights The social rights standardizes the formulation of the subject and the content of the state's obligations of the social rights,and constructs the constitutional review criteria for the characteristic social rights restriction norms.