On the basis of the constitutional right to social security

Since the 20th century, with the human Economic, Political, social and other aspects of the rapid development of Civilization, social security (1) has been the constitutional practice in different countries [2] is recognized as an essential basic rights. As the United Nations << Declaration of Human Rights>> called: "All citizens, as a member of the society, are entitled to social security." [3]
Although the social and Economic rights as other rights generally, social security rights is not as old as the right to freedom of the general subject "transcendental" universal respect. But right to social security in various countries and the international community in the spectrum of human rights protection, has been with the other freedom, Political rights and other rights connected with each other and enjoy a common basis, the paper that the constitutional right to social security on the basis for a study.

First, the right to social security is an embodied humanity's "natural rights"
"Natural rights" proposed in the 17-18 century, the British, American, French Asian countries provides a theoretical basis for the birth of the Constitution. Enjoy and protect the "natural right" is the creation of human society through the Constitution, the purpose of the government. This includes not only the natural right of life , liberty, property, also including the pursuit of happiness and security. life, liberty and property in the early capitalist countries created the Constitution was rightly admired for the three cornerstones of human rights, it is because people in that historical context of the general concern is against the government, against the authoritarian right. but the same was recognized early in the constitutional documents of security [4] has the right until the 20th century began to show its true meaning.

The rights and safety of life, liberty, property, these "natural rights" as is based on human reason. Who live in a society, people and other similar, and only together with other similar societies to survive. Human and other the common life, to meet their needs and achieve their aspirations. countries to all members of society to provide "security" protection of human reason. state is "a free people to enjoy the rights and protect their common interests and combine full of the Commonwealth. "[5]
Since the 20th century, with the emergence of various social factors, this rational human consciousness gradually clear. As the ongoing Economic crisis, war and war's disaster. If there is no established by the Constitution and implemented for all members of society the right to social security --- as life, liberty, property, natural rights in general, the survival of the modern state can not imagine.

Second, the social security rights is an objective requirement for the development of constitutional rights
Constitutional right is recognized by the Constitution of each country and to protect the fundamental rights. It is a constitutional value, but also the core of the Constitution. Different countries in different historical periods and protect the constitutional rights enumerated different. As TH Marshall said, the 18th century's Civil rights by the individual freedoms of all rights, consisting of personal freedom, freedom of speech, thought, freedom of belief and the freedom of property and contract, developed in the 19th century, Political rights (PoliticalRights), which involved Political life and the right to vote, and the achievements of the 20th century lies in social rights (SocialRights), community members enjoy the most basic Economic and security, the full enjoyment of social heritage, enjoy universal standard conditions of Civilized life and Civilization. the right including the education system and social services established. This division is not in accordance with the historical evolution of the rights of the rights of logic, is an objective of the description.

The development of the constitutional rights of two distinct characteristics: First, some early in the constitutional state, the original constitutional rights have been given a new meaning to the new definition, and the second, the new constitutional state system of constitutional rights in their , an increase in the original Constitution did not confirm the constitutional number of new rights. The former property rights such as the U.S. Constitution, the new ideas and new interpretations of equality, which, as in Germany since 1919 <<Weimar Constitution>> Since the new constitutional state into the constitution of socio-Economic rights. These two features are the list of social security rights.

The development of constitutional rights since the 20th century reflected the objective of human society. Free and equal society is the common pursuit of mankind has long been the ideal .17,18 century pursuit of freedom and absolute protection of property rights, on social and economic prosperity from the great role, but also brought the serious polarization between rich and poor differentiation, equality and freedom connected to the severe economic inequalities are replaced. And there is no "economic security and independence, there would be no real individual freedom , poor people are not free people ", [6]" freedom from fear and want "and enjoy" speech, freedom of expression and religious freedom, "equally important, are an integral pArt of modern human rights. the interdependence between the right , interrelated and indivisible. such as modern citizens, property rights, at least two other rights shall be added: [7] First, the right to work, it can generate income to ensure adequate standard of living, and second, social security, It is the lack of access to the necessary property or because of unemployment, old age or disability, through the work, are still unable to meet the appropriate standard of living, in this case, the social security rights can supplement or even completely replace the property or work reasons due to an adequate standard of living of the less. Modern society, only the right to freedom without the right to social security is unthinkable.

And, with the integration of economic and social development and globalization, the development of this constitutional right has been further in the international community "consensus." Since World War II, since the United Nations <"Human Rights Declaration of>> the beginning, the international community not only With <<Protection of the International Covenant on Civil and Political Rights>> and also the <"Economic, Social and Cultural Rights>" and "The" The European Social ChArter>> and other international, inter-district conventions, the new right to social security rights, including the objective existence of the recognition. humans have agreed to the constitution of each country, including the right to social security rights, including those new to international supervision.

Third, social security based on the feasibility and necessity
History of human development shows that the existence of state power of the state enjoys a certain basis, no power will not exist for the country can not develop, and the Constitution for the protection of civil rights must be regulated on the state power to ensure that state power Legitimacy. of state power have commitments and obligations are closely related. of state power have the commitment and obligations may exist in four forms: first, to enjoy the smaller powers, assume greater obligations, and second, have less power to assume the obligations of smaller, third, to enjoy greater authority and assume the obligations of smaller, fourth, to enjoy greater power, assume greater obligations.

Where the first a form is the most beautiful ideal, but at the national commitment to social security protection of civil rights to social security obligations to the practice of a state can not be realized. Social security necessary requirement for the realization of the right of countries to enjoy greater powers : The legislative power, the right to tax, transfer payments such as the right assume the functions of social security.

The second state is the pursuit of modern constitutional state. The state of the "social contract" that, based on the legitimacy of state power that comes from people's recognition of the boundaries of state power to protect the citizens of the state of nature natural rights stArting point, the national power is limited, the functions of government is minimal. this theory in the 20th century has a vast market, still lingering in the wind around the 20th century. [8] This form means that the functions of the state social security waiver, the functions of social security by the market or individual.

This theory in the Constitution sought to shape the country as a negative obligation as a single subject.

But this state of national identity in the 20th century is the revolution in the world: a bloodless revolution and bloodshed of the revolution was a greater challenge. The former is known as a bloodless revolution, the rise of the traditional British in the 19th century, complete After the Second World War, marked by the Beveridge Report, in order to protect the rights of all members of society once again as the center of a bloodless revolution, another example, the year 1934-1935 from the U.S. Federal Government's commitment to social welfare "overall leadership responsibility" the battle with "the past to break the" Copernican revolution. which post-war rise of the socialist countries, such as: protection of society by the state to assume the social functions.

In the third state, the country enjoyed greater power and control a variety of social institutions and social resources, but does not assume the functions of social security. The result is a non-welfare "sheer ineptitude," the State. And China should beware of sliding into "sheer ineptitude," the quagmire of non-welfare state. [9]
In the fourth form, the state when the exercise of powers and obligations "power" and "responsibility" the relative said. This form can be said that the right to social security can be achieved in the most practical choice. This form to overcome the first form Under the "horse race we should not eat the horse again," the non-reality of the delusion, but also to avoid a second state, the right to complete laissez-faire market, social security operations led to the result of greater social inequality, but also can overcome the first three forms of abuse of power under the safety and security of citizens, but the irresponsible despotism of the emergence of social security rights of citizens to achieve the most viable form of power distribution.

Since the 20th century, the positioning of the Constitution of the country there has been a great development. Such as the French Constitution of 1946: France is the only indivisible, secular, democratic and social Republic (1) .1958 Constitution of the states: France is an indivisible, secular, democratic and social services for the Republic (Article 2). the German basic Law of the Federal Republic of Germany announced a social and democratic federal state (Article 20) .1949 years Constitution of India has announced that India is a "socialist Democratic Republic." Article 25 of the Constitution of Japan: "The State must in all aspects of life, committed to improving and expanding social welfare, social security and public Health." Constitution of the Kingdom of Norway states: "To every people have the ability to work to support themselves and create the conditions for the bounden duty of the state." (116) and the Second World War the rise of the proletarian state control of state power, without exception, will be "socialist" as a State the nature of the provisions of the constitution. [10] determined the economic system of socialist public ownership of the country (people's power on behalf of) the enjoyment of economic and social functions. The theory of the socialist countries in the world under different systems have different forms, different levels practice. but the state has a social function, to take on more social obligations and social responsibility is the 20th century, new trends in the development of the national form.

By the state greater powers and assume the obligations of the new larger capacity has become a world trend. It is based on socio-economic and political development of the new pattern, including industrialization, mass production and the economic crisis, the emergence of new social forces. Also due to war and the threat of war, such as the two world wars brought enormous human disaster, and the bloody war and terror, to make people aware to deal with sudden, great disaster is not the individual of whatever. the war to make people more conscious to the importance of social solidarity, the war against the common people also develop the mental qualities of social risk. from a moral point of view, "the war to establish and deepen the spirit of altruism and national sense of responsibility to the victims." war in the form of social cohesion and national organizations in the war, management and mobilization to strengthen and enhance the confidence of the country after the war and people rely on. Of course, this expansion of state power, but also thanks to thinkers advocated the expansion of state functions. [11 ]
Thus, the Constitution of the state power of the specification is no longer merely limited to the right, while under the right should be extended to the exercise of rights.

Right to social security refers to the universal access of all citizens by Law, and equal protection by the state against social risks caused by the loss of compensation and relief to the essential rights and equal access to other services designed to improve the quality of life right.

A comprehensive exposition of this right to the British Beveridge "social insurance and related services" report as a milestone. Pui's report not only is an exhaustive blueprint on social security, and the right to social security and its realization is an accurate interpretation of . its report, the "three U" system, that is universal (Universality): All members should be entitled to social security, including employment and non-employment of the population, not be excluded (exclusion), Unity (Unity): Social Security is a unified national public utility, by the state administration, consistency (Uniformity): all members of society enjoy the same rights, assumption of risk, benefit standards should be consistent, standard-setting is based on the risk against minimum requirements, rather than contributions to individual circumstances and the size of the standard. [12] and the realization of this right are marked the irreversible expansion of state power.

Countries, only countries may also be necessary to the realization of civil commitment to the constitutional right to social security responsibilities. Countries the power to tax is based, to a large number of transfer payments as a means to ensure positive legislation, [13] to the social security the positive obligations of the right providers, regulators, and the identity of arbitration to respect, protect and realize that all citizens enjoy universal right to social security.

Fourth, social security in China, the logical presumption of constitutional norms
And the Constitution in the long course of historical development, the Chinese since the 20th century, a new constitutional state. The constitutional background and the classical period of the constitutional state is different, but also due to such factors as ideology and the modern state constitutional provisions differ . to the basic system of socialism in China, all power belongs to the people, has a central system under the leadership of a single system. regardless of the positioning of the country or the configuration of power and responsibility, have shown that social security rights of its citizens should be manifest in the Constitution a special meaning. The following authors only from the perspective of constitutional norms in the Chinese Constitution, the right to social security to make a logical analysis.

The constitution of the elements of the Constitution. On the subject of constitutional norms (such as the exercise of state power, or citizens), the constitutional norms may be authorized norms, norms by this authorization to give specifications of the main power to engage in certain behaviors , may also be a compulsory specification, requirements specification subject to engage in certain behaviors, and may be prohibitive norms, which prohibits the specification subject to engage in any act. The enabling of obligation and the prohibition of sexual norms in facts or conduct that has a certain uncertainty. with such certainty should be a corresponding constitutional responsibilities fully, the specification of the main violations of constitutional norms as beyond the authority, abuse of authority or misconduct must bear a legal responsibility. This means that the full responsibility of a clear constitutional obligation and commitment to clear and specific obligations. However, due to the programmatic and constitutional norms supremacy, so many constitutional norms have a certain probability that the act or fact that has a certain amount of uncertainty, it was called "the policy norms." and this "policy norms" is connected to a not entirely constitutional responsibility, this does not mean that the obligation of full responsibility for those There is no obligation and responsibility to fulfill the validity range. the wording more for the "development ... ...", "Building ... ...", "to encourage ... ...", "The implementation of ... ...." Uncertainty is a fact that norms regulate It requires that an obligation of result, rather than the certainty of policy specification is an obligation of conduct rather than an obligation of result, it is often assumed a moral or political responsibility.

Constitutional norms by the Constitution of the "Terms" be expressed in terms of and often manifested through a number of closely related with the composite criteria. In the Chinese constitution, social security, although not a clear and complete terms, but many of the Constitution We can be presumed that the terms on the right to constitutional norms. reposted elsewhere in the Research Papers Download http://www.hi138.com 1949, at the play the role of the interim constitution <<Common Program of the CPPCC>> provisions relating to special care and placement in the labor insurance system in the first constitution of the content of .1954, in its Chapter 3, "<the basic rights and obligations>> in article 93:" People working in old age , ill or incapacitated, there was the right to material assistance. National organizing social insurance, social relief and public Health, and gradually expand these facilities to ensure that workers enjoy such rights. "This provision directly modeled after the Soviet Union Constitution of 1936 Constitution of .1975 in the limited terms, still retained in the 1954 part of the Constitution, its article 27, paragraph 2: "workers ... ... in the old, ill or incapacitated, when have the right to material assistance. "Constitution of 1978 restored the 1954 Constitution, the basic content and be developed, Article 50 provides that:" workers in old age, sickness or disabled when there is the right to material assistance . the state has the development of social insurance, social relief, public Health and the Cooperative Medical Service, to ensure that workers enjoy such rights. national concern and protection of the revolutionary disabled soldier, the lives of the families of revolutionary martyrs. "
1982 <<Constitution>> on the right to social security of our citizens were once again states: "The State shall apply the enterprises, institutions and state agency staff employees retirement system." Retirees by the State and social life protection (Article 44). "PRC citizens in old age, illness or loss of the ability to work the case from the state and society the right to material assistance. national development rights for the citizens to enjoy the required social insurance, social relief and Medical and Health. state and society ensure the lives of disabled soldiers, pension families of martyrs and give preferential treatment to military families. state and society help make arrangements for blind, deaf, mute and other handicapped citizens working, living and education. "(p. 45 section) .2004 amendment to the Constitution and joined the "state establishes and improves the economic development level of the social security system."
1975 Constitution, the Constitution of 1978 compared to the 1982 Constitution on the content of the right of social security has been changed. First, from "workers" of the material assistance to the "citizens of the PRC", it contains have whether material assistance should not be or have been employed as a precondition of employment or conditions, the second is in addition to citizenship "rights" provisions, there are national "system" of the terms, the implementation of enterprises, institutions and state employees retirement system and the third is to increase the retirees (enterprises, workers and staff of state organs, not all citizens) the right to livelihood security, the four terms in the rights specified in the civil rights of countries to meet the needs of duties and responsibilities: the development of social insurance, social relief and Medical and Health services, military personnel and their families, special care, the disabled, protection of life and education, five is in addition to the "basic civil rights and obligations" in the chapter on the security content of the right of civil society made provisions, added in the Master of provisions of the declaration to provide for the national social security objectives.

From the above provisions, we can see: First, from the right to regulate the composition of view, there are norms of civil authority, such as the right to material assistance, protection of the right to livelihood of retired personnel. But there are still available for review the following issues: first, enjoy the right of the main body of material assistance undistributed limited to age, illness and loss of working capacity of the citizens, but does not include the main body such as the unemployed or more, such as children, [14] Second, the help content is not comprehensive. just material help, not including non-material assistance, such as service, the three retired officers living of the Right of undistributed, is limited to enterprises and employees and retirees, are not covered by other citizens, such as farmers. Second, also have a policy of national norms, such as "national development rights for the citizens to enjoy the required social insurance, social relief and Medical and health. state and society ensure the lives of disabled soldiers, families of martyrs pensions, preferential treatment families of military personnel. state and society help make arrangements for blind, deaf, mute and other handicapped citizens working, living and education. "Although such a policy specification is only an incomplete state constitutional responsibility, but can not thus be denied the right to social security as citizens The importance of content, on the contrary both to its recognition of the importance of a citizen of the former authority of the norms by the "may" to "reality" of the necessary means, but also for the State to assume political responsibility and moral responsibility requirements. and, in the present situation of China Under the state of moral responsibility and political accountability is particularly important.

Third, the provisions of the constitutional amendment in 2004 for the occurrence of this specification the conditions set by "economic development" is to make the specification more probability, and the lack of certainty. That is, one, the state can establish can not create, and the other, can also be established as early as later established, the three countries can establish some better, you can also set it in worse. because the state has a shield: "economic development" is good or bad or high and low.

Social security system and a sound level of economic development must be related? The answer is no doubt that the social security system established itself to a certain degree of social and economic development of the product of very low economic level in the agricultural society, people risk protection mainly family-oriented, no do not need social security. The social security system to build its own social and economic development that is the product of a degree, but what level of economic development to the extent to which it can establish and improve the social security system? Moreover, any system and a sound associated with the level of economic development.

Economic growth for the realization of the right of social security to provide a certain amount of resources, but economic development does not guarantee the right to enjoy the level of social security. A full example is the reform and opening up, China's economic reform and opening up the level of lead far less world attention The continued growth in GDP, but today social security of citizens is far from the last century than 70 years, while the gap between rich and poor in China today has the highest level breakthrough.'s economic development can not decide on the level of speed and realization of the right of social security. States on the allocation of economic and living resources, the state budget allocation of social security expenditure are not completely determined by the speed and level of economic development level. the right to social security is not a better guarantee the country's fastest-growing GDP, nor economy and most powerful nations.

Fourth, while the 2004 amendment to the Constitution of China added, "the state respects and safeguards human rights" provision, as countries on human rights issues and set a policy specification. The specification of the object "human rights" and how understand? I believe that this object, including but not limited to, the Chinese Government should have signed and ratified and international human rights conventions were not retained in the human rights content. One of the 2003 National People's Congress formally approved the accession of the <"Social, economic, cultural Convention on Rights of the State>> The right to social security is about the human rights norms in the proper meaning of the object. This specification may be regarded as a constitutional amendment in 2004 on the social security system in terms of the complex nature of policy terms.

Of course, despite the 2004 amendment to the Constitution in terms of policy the constitutional sense, the specification has only weak, but as mentioned above, a policy provision that is not fully responsible for the corresponding right to social security can not be denied the right as importance for the country to set it at least a political responsibility and moral responsibility, two norms with the fact that it has the same nature, are constitutional norms, is the force of Law with the highest standards, other legislative and administrative acts only through specific actions to be protected and their implementation, not the opposite.

Conclusion
The basis of a fundamental constitutional right of value not only in its requirements, but also the logic of its requirements in line with constitutional norms. Right to social security since the 20th century, countries generally have a constitutional right and that right there is the history of the Constitution embodies the since the protection of civil rights, regulate the basic values of state power also means that constitutional norms should be as legal significance. its legitimacy of this right is to have a deep understanding of the starting point, and this legitimacy of the realization of basic rights is not only theory but also practice the end goal of the Constitution.




Notes:
[1] "Social Security" in the China's Taiwan and Hong Kong and Macao have also translated as "social security."
[2] The Constitution of practice include: (1) to declare in the constitution provisions, (2) legislative requirements, (3) provide for a system of safeguards, (4) made an explicit constitutional provisions, (5 ) through the interpretation of the Constitution, (6) through the implementation of international treaties.

[3] <"World Declaration of Human Rights>> 22.

[4] As with the American "" The Independents Declaration> "(July 4, 1776) in the same year but were born earlier than 22 days of the American" <Virginia Bill of Rights> "(June 12, 1776) Article 1 explicitly states: "All men are equally free and independent and have certain natural rights, these rights when they enter the state of society, is not by any contract to be deprived of their offspring, and these rights is the right to life and freedom, obtaining property and possession of property and the pursuit of happiness and security and access. "and American" "The Independents Declaration>> enjoy the same reputation, and more far-reaching Asian countries later in 1789 French <" Human Rights and Civil Rights Declaration>> Article 2 provides that: "the aims of any political association is the preservation of the rights of nature and can not be shaken. These rights are liberty, property, security and resistance to oppression." After several changes in the Declaration, in 1793, of natural entitlement may be converted "equality, freedom, security and property."
[5] Grotius language.

[6] See President Roosevelt in 1944, published in the United States Congress, "State of the Union."
[7] See [Norway] A. Eide, eds: <"Economic, Social and Cultural Rights, tutorials>>, China Human Rights will organize translation, Sichuan People's Publishing House, 2004 edition, p. 164-19 pages.

[8], such as Reagan and Thatcher administration, the prevalence of neo-conservatism.

[9] "sheer ineptitude", see Yin Yiwen: "What will the welfare state", "<Weekend>> September 17, 2009, Yin Yiwen the" sheer ineptitude, "the image of the proposed as" not to the National Milk eat "to distinguish it from" feeding to the National Eating "welfare state.

[10] According to the author of the Chinese Constitution to rough statistics, in the constitutional text, there are as many as 30-35 referred to socialism, and in 31 of the amendment, about 10 references to socialism.

[11] since the 19th century, the state should actively intervene in the thinking of development to a new stage, especially in the German forum for socialism, Fabian socialism and the United Kingdom, France joint doctrine, the doctrine known as the National Socialist .20 century, Western countries have a direct impact should be Keynesian. Keynesianism prevalent in the 20th century, 30 years after the economic crisis in Western countries. Keynesian government intervention and regulation in order to finance an important theoretical basis for economic life.

[12] A NOTE: "Cooperation Theory and the modern welfare system", contained in [Canada] R. Mishra: <<capitalist society, the welfare system>> "Translator Postscript," A NOTE translation, Law Press, 2003 edition , p. 171.

[13] Social Security System, the final realization in all countries are gradually established by a set of Laws, such as in Canada: "a comprehensive social security system was not in articles in a government set up. On the contrary It is through the 10 bills, from the 'war' to end the early 70s gradually built up. "Qiu Yu Pro: <<Canada's social security system selection and its Implications for China>>, Economic Management Press, 2003 edition, the first 29. The United States in a number of important bills signed by Roosevelt in the United States most far-reaching social and economic development legislation, undoubtedly the August 14, 1935 entry into force of the <"Social Security Act">. Jiangshou Ming, etc.: <<West Introduction to the social security system>>, Science Press, 2002, p. 148. Britain after World War II, including the social security legislation in 1945, <"Family allowance Law"> 1946 <<National Insurance Law >>,<< National Health Care Act >>,<< Rent Control Law Housing Act >>,<< >>,<< industrial injury insurance Law "> 1948 <<National Relief Law"> 1975 <"Social Security Pension Act">, 1985 <"Social Security Law"> 1995 <<Pension Law "> and so on. The Japanese have the famous" welfare Six "that is six welfare legislation. Germany 1883 <<Sickness Insurance Law">, 1884 <<Work Injury Insurance Act >>, 1889 <<Disability and Annuity Law ">, 1911, three laws together as the" Empire Insurance Act. "Moreover, 1911 <<Staff Pension Insurance Law"> 1923 <<miners Social Insurance Law ">, 1927 Year <<Unemployment Insurance Law ">, 1906 <<Officers Pension Act and the soldiers Pension Law"> 1907 <<Survivors Relief Law "> 1923 <<Disability Assistance Law"> 1924 <"Public Assistance Law" >, while the 70s last century, the development of a unified <"Social Code>>.

[14], of course, on children as a principal, we can make: "Marriage, family, mothers and children protected by the state" (article 49) and arising out of. For the mother, child protection should include physical protection and social protection However, compared to the specification of policy norms, rather than authority or obligation norms, is still normative effect of a weaker norm. Links http://www.hi138.com Research Papers Download