宪法社会权及其司法救济——比较法的视角

The Constitutional Social Rights & Its Judicial Remedies:from the Perspective of Comparative Law

宪法社会权的正当性及其直接司法救济的可行性是存在争议的问题,不同国家在不同情况下对于该问题采取了不同态度,有的国家仅把宪法社会权作为不可直接司法救济的宣示性权利;有的则采取了"弱救济"的方式,更多尊重立法与行政部门的裁量权;也有的法院在特殊情况下会采用"强救济"的方式,直接判决强制实现宪法社会权。实际上,法院可能会根据实际情况转化适用"弱救济"与"强救济"。在宪法社会权领域,不可过分依赖司法救济,而应更多地由政府根据人民的需要来具体实现。排除了直接司法救济这一必要条件,宪法社会权的正当性难题也就迎刃而解。

Focus on the theories and cases of overseas, this article has studied the development of the constitutional social rights in the academic and practical fields, which enlightened by the works of Mark Tushet, a professor of Harvard Law School. It is not self - evident that the justness of the constitutional social rights and their direct judicial remedies, the courts of different countries take different attitudes towards the specific rights in different backgrounds. The constitutional social rights could be nonjustieiable or merely declaratory rights. Some courts take them as weak substantive rights, which are not immune from judicial enforcement. In some countries, some special rights could be strong substantive rights, which the courts could enforce them fully as well. Actually, the same court could change its attitude while facing the same case. Wei＇e facing the paradox of the constitutional social rights and their judicial remedies, maybe the courtroom is not the ideal forum to solve social problems, therefore, the executive branch and the legislator should realize the real needs of the people more effectively.