可行能力视角下的残疾人就业权利与国家义务

Right to Employment of Persons with Disabilities and Relevant State Obligations:From A Capability Perspective

"可行能力"的概念为理解残疾人权利提供了一个合适的视角。残疾人的发展和就业权利的实现可被视为可行能力的扩展:既消除有碍残疾人就业的各种基础性限制,亦创造一种有利于持续扩展可行能力的条件和环境,促使可行能力的清单能够不断增项。残疾人就业保障的国家义务通过可行能力与其就业权利相连,并呈现为尊重义务、保护义务和促进义务三个类型,其中尊重义务、保护义务是基础性义务,促进义务由于具有更强的建设性而扮演越来越重要的角色。互联网经济为残疾人创业就业创造了崭新机遇,促进义务的有效匹配和实施会给残疾人就业权利实现带来显著效果。

The concept of ＂capability＂ provides an appropriate perspective for under- standing the rights of persons with disabilities, from which the realization of the right to devel- opment and the right to employment of persons with disabilities can be seen as an extension to capability： such extension not only eliminates the basic restrictions affecting the employment of persons with disabilities, but also creates a condition and an environment favorite to the con- stant expansion to capability so that the list of capability can continue to include more items. The state obligation to safeguard the employment of persons with disabilities is linked to the right to employment of persons with disabilities through capability, and can be divided into three types of obligations ： obligation of respect, obligation of protection and obligation of pro- motion. While obligation of respect and obligation of protection constitute fundamental obliga- tions, obligation of promotion is playing an increasingly important role thanks to its nature of being more constructive. Internet economy has created a brand new opportunity for persons with disabilities to start up new businesses and to be employed, and the effective matching and im- plementation of obligation of promotion would bring significant effects to the realization of the right to employment of persons with disabilities.