Study On The Protection For The Disadvantaged Group By The Constitution In China

Disadvantaged group, or social vulnerable group, mainly is been viewed from the loss of the ability to work and lack of the independent viability, it means"the dependent group"in our society and in the social welfare system. In academic circles, there are several different theories regarding the concept of disadvantaged group. They expatiated on the disadvantaged group's connotation and the extension, used different methods and from the different angles. There are wealth weak theory, ability frail theory, low status theory, the resources weak group theory and so on. This thesis regards that disadvantaged group is a relative concept, which is confined on the basis of the commeasurable precondition, from a angle, with a relatively objective and relatively clear, but a little fuzzy standard. It is also a indefinite concept, its formation and evolution track is the results of the development of politics, economics and culture in certain development time of the society. Disadvantaged group also is a multi-dimensional concept, scholars from different disciplines may define the disadvantaged group from the different angles. For example, they may define it from the angles of sociology, economics, politics and so on. This thesis discusses the disadvantaged group from the legal angle. The disadvantaged group in this thesis means the community that especially needs protection, because in the equal vision, the people in this group are in disadvantage position at the aspects of economic conditions, power and right, competitive ability as well as development opportunity for nature or social reasons. This thesis has also classified the disadvantaged group. According to the producing cause, they are the physiological disadvantaged group and the social disadvantaged group. The old, the young, the women, the disabled person, AIDS group, the drug addict, the incurable patient who are inability to pay is the physiological disadvantaged group; the unemployed, the peasant worker belongs to the social disadvantaged group. And according to their characteristics, they are absolute disadvantaged group and the relative disadvantaged group. The characteristic of disadvantaged group is large population, poor, in low status and so on. Offering constitution protection for the disadvantaged group is the inevitably request of safeguarding the basic human rights; is the requirements of realization the right of equality, concretely it specifically manifests the indiscrimination principle of equal right; is the need of fairness and justness principle, also exhibits the just distribution principle; and also is advantageous to harmonious society's constructing. This thesis has also analyzed the constitutional protection situation of several kind of disadvantaged group. In my opinion, nowadays it lacks legal protection for the peasant worker's political equal right, employment right, social security right, children's equally-educated right and so on. This thesis has analyzed the constitution of the city disadvantaged group, whose right to adequate housing, employment right, medical security right cannot meet the needs. On this basis, it has proposed in this thesis the design of the system of protection by the Constitution for disadvantaged group: Firstly, it must enhance the consciousness, the key of protecting the disadvantaged group's basic human rights is to enhance the understanding of the disadvantaged group's right of equality; must eliminate discrimination against the disadvantaged group, ensure the equality of opportunity; must establish special human rights protection organization to strengthen protection for the disadvantaged group's human rights; must take the social fair principle as the guidance, establish and perfect the mechanism to balance the benefits of kinds of people. Secondly, we must perfect the legislation, establish the disadvantaged group's right safeguard legal framework that takes the constitution as the core. Since the reform and open policy, our country's legislature has made great endeavor and obtained the universally acknowledged achievement. But we must revise and perfect the constitution, make the constitution become the core of disadvantaged group's right safeguard; must establish and perfect the relative legislation, constructing framework of disadvantaged group's right legal safeguard. So we should thoroughly clear up the existing relative laws and regulations. We should institute "Social Security law" as soon as possible, establish and perfect disadvantaged group's right safeguard system. This law should contain : Social insurance legal regime; Social relief legal regime; Social welfare legal regime; The special care and placement legal regime; Rural social security legal regime and so on. In view of the peasant disadvantaged group, we must establish the related law as soon as possible to safeguard their right. And we should perfect the Household-registration system, eliminate fundamentally the differences between the town and the country. We also should establish and perfect the disadvantaged group's employment legal regime to protect their employment right. Thirdly, it needs establish and perfect the constitution judicial system, construct the lawsuit mechanism of interest for the disadvantaged group. So, the judicial branch may act on the basis of the legal authority and procedure, solute the dispute according to the law, thus protect disadvantaged group's right after the disadvantaged group's right has been infringed by others.