A Research On The Social Beneficial Right From The Perspective Of Economic Law

In opinion of Amartya Sen, substantive freedom is the capability to live a qualified life,which has surpassed the negative or positive freedom form in view of the traditional law.Substantive freedom concept is a human-centered development view, a freedom concept withthe view of negative freedom and positive freedom melted, and a justice view that manifestssubstantive equality. The resources and conditions foundation needed to enlarge thesubstantive freedom or capabilities become the main reason why economic law must showsolicitude for substantive freedom. In view of economic law, the right form of substantivefreedom can be subtracted to be social beneficial right which means the right of members ofsociety to share the development fruits (resources, benefits and opportunities, etc). The socialbeneficial right’s contents include extensive specific rights which are in the field ofeconomics, sociology, environment and zoology etc. In structure, the social beneficial rightcan be divided into two parts, that is, procedural participate right and substantial beneficialright, and the later one can be subdivided into two parts, i.e. general beneficial right anddifferentiation beneficial right.This research is launched along with such a path: the crisis of modernity–humanismmethodology and development concept–the substantial freedom–the connotation of socialbeneficial right–the theoretical and practical significance of social beneficial right–thecontent structure of social beneficial right–the realization route of social beneficial right.What’s more, this thesis still has two logical lines: one is normative analysis of right, i.e. anoverall argument of the origin, connotation, significance, content and realization of socialbeneficial right; and the other is a line around interest/right balancing, that is,“imbalance ofright/interest distribution–the differentiation between the strong social group and vulnerableone–the formal justice and substantial justice–widespread protection and differenceprotection–realization of the right–right/interest balanced”.This thesis consists of four parts. The first part introduces what the concept of socialbeneficial right deprives from. It argues that under the enlightenment of the crisis of modernity the traditional materialism development concept was replaced by the humanismdevelopment concept, and the balancing and expanding of substantial freedom becomes thefundamental purpose of development by replacing the parochial economic growth. Thesubstantial freedom means various capability to get or realize all basic good that could meetfor the living needs. And the social beneficial right is the right-form of substantial freedom inlight of jurisprudence. The second part elaborates that the social beneficial right could betaken as the overall right of economic law, and states the theoretical and practical significanceof this theory. Theoretically, it could develop the constitutional rights theory and the rightstructure theory of economic law. In practice, it could be taken as the legal right by which themember of the society may fairly share the development achievements. The third partexpatiates the content structure of social beneficial right. The procedural participation right isbased on the democratic participation theory, and centered on the right to express and right ofrepresentation. The substantial beneficial right is divided into two parts for the standard of thedifferentiation between formal justice and substantial justice: general beneficial right anddifferentiation beneficial right. The last part gives the path and mechanism about how torealize the social beneficial right. Taking the content structure as the analysis tool, this partprovides some suggests and arguments, from the perspective of how to realize the proceduralparticipation right and how to realize the substantial beneficial right.