Research On China's Social Security System From The Perspective Of Constitutionalism

Social security as a hot issue in people's livelihood has gradually become the focus of attention of the public and scholars. In 2004, the provision of "establishment and development of social security system of China compatible with the level of economic development" was written into the Amendment of Chinese Constitution, turning a new leaf of social security system construction. This paper analyze China's social security system from the perspective of constitutionalism in order to achieve the balance of limited and powerful social security function under the historical background of the association of two kinds of constitutional concepts by specific research of litigation, administration and judiciary of China's social security.Chapter One introduces different subject's views of social security especially the subject of constitutional law, and confirms that right to social security is a basic constitutional right. Worldwide social security system has experienced four historical stages:poor law era, the era of social insurance law and the welfare state era. Since the founding of New China, our social security system is gradually developing and improving. State guarantee develops to social guarantee. Subject for duties develops from one-sidedness to plurality. Social security contents enrich from shortage and social security coverage broadens from staff to all people. The level of protection changes from single to multi-level hierarchy.Chapter Two analyzes the constitutional base for social security system. The ideas of popular sovereignty, democracy, check and balance, rule of law, and human rights are the key ideas of constitutionalism and they also constitute the constitutional base for social security system. There is certain relationship between the change of constitutional concepts and the transformation of state social security functions. Under passive constitutional concept, it shows limited function while under active constitutional concept, it shows powerful function. Achieving the balance of the two kinds of functions has become the target of modern constitutional states. As to China, the carefully designed constitutional system including social security litigation, social security administration and social security judiciary will help us to get the goal.Chapter Three discusses how to achieve the balance of the limited and powerful functions of state social security from the perspective of legislation. Rule of law is one of the core concepts of constitutional government, and legislation is the basis for the rule of law. Legislation nonfeasance leads to different results at different times. It doesn't constitute an infringement to freedom but will constitute an infringement to social rights. Legislation of social security is the requirement of constitutional commission and economic development. In order to put a powerful legislative function into effect, we need to follow Three Basic Principles and our unique mode of social security legislation, and on this basis, establish a complete legal system of social security. At the same time, we must pay attention to realizing the constraint on social security administrative legislation by the principle of legal reservation.Chapter Four discusses how to achieve the balance of the limited and powerful functions of state social security from the perspective of administration. The operation of the executive power is the embodiment of implementation of the constitution. Administration experiences from Order Administration to Benefits Administration and social security administration belongs to Benefits Administration. At the new times, in order to achieve the balance, we should on the one hand limit government administrative acts by playing the role of market regulation and the role of social self-governing; the other hand, regulate the behavior of the social security administration by laws and administrative regulations. In order to implement this guidance, we should establish three systems:first, a scientific and efficient administrative system of social security; second, to improve the regulatory system of social security funds; last, to play an important role in administrative review.Chapter Five discusses how to achieve the balance of the limited and powerful functions of state social security from the perspective of legislation. Social security right has justiciability which can be approved by the judicial practice in foreign countries both of constitutional litigation and ordinary legal remedies. In order to effectively protect the citizens'right to social security, we should set up the judiciary barrier. Meanwhile we need to set up a special court and also configure special dispute resolution procedures of social security on full recognition of the particularity of social security disputes. Furthermore, in order to protect social security right from the infringement of litigation, we should improve the constitutional remedy according to the national circumstance.