Discuss Of State Obligation In The Protection Of The Right To Rest

As a basic human right, the right to rest is stipulated in many International Bill of HumanRights and majority constitution，and the right to rest attract more and more concern andattention in today ’s. Our country always attach importance to guarantee workers’ right to rest,1954Constitution, the1975Constitution, the1978Constitution and living Constitution allstipulate workers’ right to rest，living Constitution article43stipulate workers have the rightto rest. On the other hand, state and employers frequently infringement workers’ right to rest,Karoshi incidents have occurred. One of the important reasons is our country legal system onthe workers’ right to rest still exist some defects, legislation, law enforcement and judicialremedies of the right to rest are required to improve. The basic right has “the subjective right”and “the objective value order” characteristic, the right to rest is no exception. We can drawnby our constitution summarizes human rights safeguards, the right to rest has “the subjectiveright” characteristic, citizen can request state take some measures. We can drawn by ourconstitution article43, the right to rest has “the objective value order” characteristic, stateshould fulfill protective function of the state.This article is divided into four parts.The first part is fundamental theory about the right to rest. Expound theory about theright to rest, interpretation connotation of the right to rest, clear the subject and detail of theright to rest, clear the relations with human right, the right to work and holidays rest. Analyzeconnotation and value basis of state obligation; we can learn that state obligation has legal anduniversality characteristic.The second part is analyzing the two fold meaning of the right to rest. First introduce theconcept of “the subjective right” and “the objective value order”. Base our countryconstitution; we can learn that the right to rest has two fold meaning and function to two foldmeaning. The right to rest as the subjective right has defensive function and entitlementfunction, defensive function mainly exclude interference by state, entitlement function requirestate take measures benefit for the right to rest. The right to rest as the objective value order,state should pursue the value in the right.The third part, the right to rest as the subjective right, state should fulfill some stateobligation. When the right to rest as the subjective right, it has defensive function and entitlement function, so these is corresponding state obligation. Corresponding defensivefunction, state should fulfill negative duty, should not invade the right to rest. Correspondingentitlement function, state should fulfill benefit duty, including financial aid duty and judicialduty.The fourth part, the right to rest as the objective value order, state should fulfill somestate obligation. When the right to rest as the objective value order, state should fulfillprotective function of the state. According article43of constitution, state should completelegal protect system of the right to rest, fulfill protective function of the state. State organundertake protective function of the state, active formulate legal about indemnification of theright to rest, implement legal about indemnification of the right to rest and take the legalinterpretation according constitution.