A Study On The Article Of “Mothers Shall Be Protected By The State” In Chinese Constitution

This study systematically analyzes the article of “ Mothers shall be protected by the state ” in Chinese constitution,explores the specific connotation of the article,in order to improve the study on the article and provide guidance for the protection of mothers’ rights.First of all,starting from the theoretical controversy of the article,the basic theory of the article is discussed.Firstly,about the rationality of the constitutionalization of this article,under the systematic interpretation of the article about equality between women and men in the constitution,the constitutionalization of this article is not out of the idea that mothers belong to vulnerable group,but from Chinese characteristic view of human rights,that is,paying attention to the protection of the rights of the majority and the rights of specific people,and at the same time from the unique social value created by mothers’ birth and parenting behavior.Secondly,about the nature of the article,the article can be restored to “ Mothers have the right to be protected by the state ”.Since the institutional guarantee theory can already be included in the fundamental right theory,the article belongs to the provision of the fundamental rights of mothers including institutional guarantee,and belongs to the generalized social rights in the fundamental rights.Thirdly,about the connotation of “ mothers ” in Chinese constitution,starting from the expression of the article itself,the “ mothers ” in the article is limited by “ family ” but not limited by “ marriage ”;starting from the theory of social rights and the position of this article in the constitution,the mothers who are protected by Chinese constitution should be the mothers with Chinese citizenship.Starting from the rationality of this article into the constitution,the mothers protected by Chinese constitution should be the mothers who make contributions to fertility and upbringing,excluding the stepmother without upbringing and the genetic mother under surrogacy.Then,starting from the provision of this article on social rights,explore the specific rights granted to mothers by the constitution.Firstly,since the entry of this article into the constitution stems from the social value created by mothers’ birth and parenting behavior,the rights granted to mothers by the constitution should be the right about maternity protection in the broadest sense.Starting from the article itself,combined with the provisions on the protection of mothers in the current law,it can be seen that the right about maternity protection granted by the constitution should include the rights about work protection,medical protection,material protection and family protection;secondly,under the systematic interpretation of the constitution,mothers’ rights granted by the constitution should “ adapt to the level of economic development ”.From the perspective of the article of " All citizens of the People’s Republic of China are equal before the law " mothers’ rights should include the rights of single mothers,mothers with many children and mothers with financial difficulties.Finally,starting from the fact that the article belongs to the provision of fundamental rights,the corresponding national obligations of this article are determined from three aspects : the defensive right function,the beneficial right function and the objective value order function of fundamental rights.The defensive right function of the fundamental rights corresponds to the obligation of the state to respect fundamental rights,but back to the article itself,it can be found that the state has the obligation to respect mothers themselves,because protection is premised on respect.At this time,there is no obvious distinction between the state’s respect for mothers and the state’s respect for mothers’ rights.Because it is difficult to enumerate how the state should respect mothers,the state’s obligation to respect mothers is distinguished by the subject.At the same time,because the supervisory organs do not treat differently because of whether the object of supervision is mother or not,the state’s obligation to respect mothers can be classified into the obligation of specifically from people’s congress,people’s government,people’s court and people’s procuratorate.The beneficial right function of fundamental rights corresponds to the state’s payment obligation.Since the mothers’ rights belong to social rights,the beneficial right function is the most important function.Mothers can directly request the state to pay,and the state’s payment obligations include material payment obligation and judicial relief obligation.The objective value order function of fundamental rights corresponds to the state’s narrow protection obligation.At this time,it should be distinguished from the broadest protection obligation in this article.The state’s narrow protection obligations to mothers include the obligation to provide institutional construction for mothers and the obligation to defend mothers against third-party infringement,but mothers can not directly request the state to protect themselves in the narrow sense.