社会权司法救济之宪政分析

社会权是与自由权同等重要的宪法权利。透视各国宪政实践可以清晰地观察到,社会权宪法化及其救济司法化的趋势业已形成,并以三种方式呈现巨大的发展潜力。一是宪法明确规定社会权,并视之为主观权利予以直接司法救济;二是宪法没有明确规定社会权,但确立了司法审查,通过适用正当程序和平等保护原则予以间接司法救济;三是宪法规定社会权作为国家政策指导原则,且视之为客观权利予以间接司法救济。很明显,社会权具有一定范围和程度的可诉性。

Constitutional Analysis of Judicial Remedies Applied to Social Rights

Being constitutional rights, social rights are as important as the right of liberty. The practice of constitutionalism all over the world clearly shows a trend of social rights' constitutionalization of social rights and the application of judicial remedies to them, which indicates tremendous development potential in three ways. First, social rights are specified by the Constitution and are deemed as positive rights to which judicial remedies may be directly applied. Second, social rights are not prescribed by the Constitution but a judicial review is established by it. So judicial remedies may be indirectly applied to social rights through due process and equal protection. Last, social rights are provided by the Constitution as rights under the direction of state policies and as negative rights to which judicial remedies can be indirectly applied. Obviously, within a certain scope and degree, social rights can be claimed in court.