最低生活保障标准的设定与司法审查——以日本废止老龄加算的生存权诉讼为中心

On the Establishment of the Minimum Living Standard and Its Judicial Review——Centering around the Right-to-Live Litigation Abolishing the Additional Subsidies for the Elderly in Japan

最低生活保障标准的设定直接关涉公民生存权的实现程度,对其进行规制是法治国家的必然要求。日本最高裁判所自1967年朝日诉讼判决以来,基于专业技术性和政策性角度,坚持厚生劳动大臣拥有设定最低生活保障标准的广泛自由裁量权之立场。但是,在21世纪初期废止老龄加算的生存权诉讼中,其又认定对于厚生劳动大臣设定标准的行政裁量应进行判断过程的程序性审查,开始由低密度审查向中密度审查转变。我国拥有最低生活保障标准设定权的地方政府在实践中主要以行政规范性文件的形式公布各地的最低生活保障标准,日本的相关诉讼判决为我国法院附带审查最低生活保障标准的行政规范性文件之合法性提供了方法借鉴,为最低生活保障标准的立法完善提供了路径指引。

In light of the direct correlation between the establishment of the minimum living standard and the exertion of people’s right to live, it is necessary to regulate the former in a country under the rule of law. Based on the perspective of expertise and policy, the Supreme Court of Japan had sticked to the standpoint since its 1967 ruling in the Asahi litigation that the Minister of Health, Labor and Welfare occupied broad discretion in setting up the minimum living standard. However, during the right-to-live litigation abolishing the additional subsidies for the elderly in the early 2000 s, the Court held that the judging process of the Minister’s administrative discretion to determine such standard should be subject to a procedural review, the density of which has transformed from a low level to a medium level. In China, local governments possessing the power to establish the minimum living standard mainly publish their respective standard in practice in the form of administrative normative documents. The relevant judgments in Japan provide kind of methodological reference for courts in China to conduct an incidental review on the legitimacy of administrative normative documents with regard to the minimum living standard, as well as route guidance to perfect the legislation in this field.