Reflections on Rights and Duties Part I: On Labor Rights and Duties in China's Constitution
Abstract: Labor is not only an important human right of citizens, but also the main means of individual survival and development of citizens. Nowadays, it has been attached great importance by the international community and governments, and has been written into the constitutions of various countries and become one of the important provisions. Looking at China's current Constitution, namely 1982 Constitution, Article 42 stipulates that the people and citizens of China have the right and obligation to work. ? This is an initiative that takes labor as the guarantee and promotes the dignity and development of citizens and society. However, from this constitutional provision, we can clearly see that the position of labor in our constitution is both a right and an obligation.
Keywords: basic rights and obligations of working citizens
First, the meaning of labor rights
(A) the historical significance of labor as a right
As a basic right, the origin of labor right should be explored from the emergence of modern civil society. The modern national revolution overthrew the feudal system and disintegrated the privileged class. This series of events finally made the individual get rid of identity dependence and become an independent individual. The Weimar Constitution of Germany (19 19) put the right to work into the Constitution for the first time, and the right to work is the first constitutional right. Since then, other countries have incorporated the right to work into their constitutions to maintain social order, making it a basic right of citizens. Theoretically speaking, the subject of labor rights should be citizens. As a legal right, the right to work requires the state to actively create conditions to meet the employment needs of citizens and provide them with employment security. That is to say, it is reasonable to regard labor as a citizen's right, no matter from the constitutional legislation of countries all over the world or from the legal nature of labor.
(B) the development track of labor rights in China
As social individuals, we are familiar with the connotation of labor as a basic right of citizens. The country and all walks of life recognize that citizens enjoy the most basic right to satisfy human dignity, and define this right from the height of the highest-ranking law-Constitution of a country, and guarantee this right with the effectiveness of the highest rank, which can reflect the height of human spiritual civilization.
1949 since the founding of new China, the party and the state have placed people's basic rights in a very high position. Labor is the source and foundation of people's production and life, so the right to work can guarantee the survival and development of citizens and can be defined as the cornerstone of all democratic rights. If the protection of labor rights cannot be implemented and the state and society cannot attach great importance to it, it will directly affect the development of productive forces, social stability and the order of the whole society. From the first Constitution of New China of 1954 to the fourth Constitution of 1982, citizens' right to work has never been deleted. 1954 during the physical period, labor is a production and business activity that mainly consumes physical strength. In rural areas, farmers are always facing the loess and facing the sky, and are placed in different people's communes, production brigades or organizations for unified labor production; In cities, workers engage in labor production in state-owned enterprises and collective enterprises. Intellectuals in this period were still in the stage of being educated and reformed for political reasons, so their mental work has not been included in the constitution and has become the object of protection. Private enterprises and individual industrial and commercial households are also rejected by the constitution under the helplessness of being defined as speculation.
1978 since the reform and opening up, the situation in the whole country has changed the single face of the labor market. China's 1982 constitution clearly stipulates in the preface:? The cause of socialist construction must rely on workers, peasants and intellectuals and unite all forces that can be United. ? With the continuous expansion of the working class, intellectuals have been incorporated into the working class and become a part of the working class. This also means that the constitutional revisers have recognized the importance of mental work in creating social wealth, and they have also been included in the scope of protection of constitutional labor rights. With the reform of ownership structure and distribution system in China, the improvement of the constitutional status of non-public economy, and the rise of private enterprises and foreign enterprises in China, the constitutional connotation of China will be expanded to meet the requirements of the new era. 1994 enacted the labor law to protect the rights of workers, and then enacted the labor contract law to protect the legitimate rights and interests of workers and safeguard the stability and unity of the country and society. On the other hand, it is also a manifestation of practicing constitutional provisions and safeguarding constitutional authority.
Second, the obligation of labor is embodied in the Constitution.
As mentioned above, the first three constitutions of our country, namely 1954, 1975 and 1978, only stipulate the relevant essence of labor rights, which is also a manifestation of defining labor as rights. The legislative mode of this constitution has changed, until the constitution of 1982, the suggestion that labor is an obligation appeared in the provisions of the constitution. Labor is not only a right, but also the essence of citizen's obligation, which has been confirmed by our constitution.
There have been different views on the attribute orientation of labor as an obligation in the constitution, namely, the theory of legal obligation and the theory of moral obligation, among which? Theory of legal obligation? Some scholars believe that labor, as a right stipulated by law, is rooted in the reality that it has not yet become a means for people to make a living, and it cannot be cut off from the nourishing relationship with the anti-exploitation attribute of socialism. Keep? Moral obligation theory? Some scholars believe that the theory of legal obligation is of great benefit to stimulate workers' sense of labor responsibility, mobilize citizens to engage in labor production, increase production and improve living standards, and has its own moral value and positive significance, but it cannot be generalized. If we study the time node, we will find its disadvantages. For example, defining labor obligations as legal obligations can show rationality in the era of unified national distribution. However, since 1978' s reform and opening up, China has changed from a planned economy system to a current market economy. If we insist on defining the nature of labor as a legal obligation, we can no longer adapt to the trend of the times. In today's environment, although the revised labor in 1982 constitution is a legal obligation, there is still moral guiding significance behind this obligation, so the legal labor obligation in 1982 constitution can also be classified as a moral obligation. This difference is based on employment. Before employment, it is a moral obligation. After employment, labor is both a moral obligation and a legal obligation.
Labor not only absorbs the connotation of moral obligation, but also exists in the form of legal obligation in our existing 82 constitutions. In order to avoid invalid rights corresponding to no obligation and invalid obligations corresponding to no right, it is emphasized that the corresponding relationship between labor rights and labor obligations cannot be ignored. In addition, in addition to the first paragraph of Article 42 of the current Constitution 1982, the connotation of labor as an obligation is clearly defined, and we can also find other miniature with the same or similar connotation as labor as an obligation from other articles of the Constitution. As a legal researcher, we should not only pay attention to the essence of the provisions clearly stipulated by law, but also pay attention to the contents of those provisions related to labor obligations based on the consistency of constitutional hermeneutics. For example, the third paragraph of Article 42 of the Constitution stipulates that the state encourages citizens to engage in voluntary labor. The so-called voluntary labor refers to labor activities that come from one's own free will, rather than forced labor. The nature of the labor obligation it expresses is an obligation based on morality, not forced or compulsory, but voluntary and unpaid. Of course, this kind of voluntary labor advocated by the state does not use laws to guide and restrain citizens to voluntarily contribute their own labor to others, but only refers to public welfare labor, so we can't just understand this clause literally.
Third, the labor rights and obligations in 1982 Constitution are compound constitutional norms.
Looking at the three constitutions since the founding of New China-1954, 1975 and 1978, regarding the basic rights of citizens, labor is only expressed as a right in the constitution, while in 1982, labor is defined as an obligation for the first time, which is embodied in/kloc. People and citizens in China have the right and obligation to work? . This is our constitution? Create? New constitutional norms of compound rights and obligations.
It has different constitutional values to discuss citizens' basic rights and obligations in this new form of legal norms which combines rights and obligations. According to 1987' s analysis of about 142 written constitutions existing in the world at that time, there are 48 constitutions that stipulate labor as labor obligation and 78 constitutional norms that stipulate labor rights, accounting for 34% and 55% of the total respectively. The countries that adopt the legislative mode of compound constitutional norms to define labor as rights and obligations in the world-wide constitutional texts are not only China, but also French, Japanese and other capitalist countries and some former socialist countries, which are much earlier than the current constitution of China.
Rights and obligations are two elements of the compound constitutional norms of rights and obligations, which complement each other and constitute a brand-new contradictory unity. In this unity, citizens can freely dispose of their own labor rights, but the labor rights under this disposition will inevitably become a vassal of their obligations and be covered up by the inevitability of obligations; The burden brought by labor obligations will eventually shift to the essential attributes of labor elements, so the dual elements of labor rights and obligations are both inclusive and different. Legally speaking: Rights can be waived and obligations must be fulfilled? . The essential attribute of this constitutional norm of compound rights and obligations stipulated in China's Constitution 1982 is to define labor as an inalienable right that citizens should enjoy under the protection of the state. Its irreversibility finally determines that labor becomes an irrevocable right. So far, China is still in the primary stage of socialism, and social productive forces need to be constantly improved and developed, which means that the labor discussed on the basis that labor has not yet become the first need of workers' lives will eventually exist as a means of making a living. In this sense, labor can only be the expression of the right to subsistence.
References:
[1] Chen, Xiao Bei. Constitutional analysis of labor rights. Law Journal, No.5, 2009.
[2] Xu Gang. On the sequence and scope of state obligations in the Constitution ―― Taking the normative analysis of labor rights as an example. Zhejiang Social Sciences. 2009 (3).
[3] Cao Tianyu. Property right of labor force and China model. Social science literature publishing house. 2006。
[4] Xue Changli. About labor rights. Jilin University. 2006。
[5] care. Labor law. Renmin University of China Press. 2005.
[6] Xie Jia. Theoretical analysis and legal protection of labor rights from the perspective of constitutionalism. Nanjing Normal University. 2008。
Reflections on Rights and Duties Part II: On the Rights and Duties of Adults
Abstract: The appropriate adult participation system has developed quite maturely abroad. This system aims to protect the legitimate rights and interests of juvenile criminal suspects. On the basis of British judicial practice, China introduced this system and made it localized. However, at present, there are no provisions on the rights and obligations suitable for adults in the relevant legal provisions of China, which also brings many problems to promote and improve the judicial practice of minors.
Keywords: suitable for adults; Minors; Rights; accountability
Appropriate adult participation system originated from the juvenile justice process in Britain. It is a right specially designed for juvenile criminal suspects according to their physiological and psychological characteristics. Its content requires that when interrogating juvenile suspects, suitable adults must be present to help them communicate with the police, and at the same time supervise whether the police have any misconduct during interrogation. [1] At present, China has identified various pilot projects, such as Panlong District of Kunming, Changning District of Shanghai and Tongan District of Xiamen. It is of great significance to sum up local experience, draw lessons from British mature theory and design reasonable rights and obligations of adult eligible persons for improving China's adult eligible person system.
Firstly, the theoretical basis of appropriate adult participation system. 1972 Kenfit case formally established the appropriate adult participation system in the British Police and Criminal Evidence Act 1984. The law points out that an appropriate adult intervention system is applicable to minors under 17 years old and adults with mental disorders over 17 years old. [2] In order to better implement this system, the British Guide for Adults clearly lists the rights suitable for adults. China's criminal procedure law, the law on the protection of minors and other relevant laws and judicial interpretations have many provisions on the legal representative's participation in interrogation, but there are no clear provisions on the rights and obligations of the legal representative after he is present. ? Suitable for adults? The word ""is not mentioned in the relevant laws of our country. By analyzing the legal provisions of China's criminal procedure law on litigation participants, it is found that suitable adults can overlap with their close relatives and other people who are conducive to helping educate minors, which is in line with the legislative intent of the criminal procedure law.
Second, foreign countries learn from the rights and obligations of suitable adults.
(1) Britain. The proper adult system is a unique invention in Britain. In the practice of juvenile justice in Britain, there is not only a special team suitable for adults, but also the Guide for Adults on the website of the Home Office of the United Kingdom has made detailed provisions on the rights and obligations suitable for adults. [3] There are mainly the following points: suitable adults have the right to know and can meet minors before interrogation; Providing advice and suggestions to minors; Supervise whether the police investigation is fair and lawful; Assist minors to communicate with the police and respect the privacy of the interrogated; After the interrogation, the appropriate adults have the right to read the interrogation record and sign it. If they don't sign or refuse to sign, the record will be excluded because the procedure is illegal. (2) the United States. When an investigator interrogates a minor, he must inform his parents before interrogation. Minors have the right to consult their parents present, and the whole interrogation process will be recorded. (3) Australia. Call the right adult? Adults question friends? . Adult's friend-asking exists as a helper in criminal proceedings, and the presence is mainly to ensure that the confession made by minors is voluntary.
Third, the design of the rights and obligations of eligible adults in China. The author believes that the rights and obligations of eligible adults are mainly highlighted in the investigation stage, but the provisions on this part are vague in judicial practice, and there is no unified standard from the pilot projects in Panlong District, Shanghai District and Tongan District. As far as the investigation and interrogation stage is concerned, the design of rights and obligations suitable for adults should follow the following principles: First, design their rights and obligations from the perspective of protecting the rights and interests of minors. Second, the design of rights must meet the functional requirements suitable for adults to be present; The design of obligations should avoid situations that may infringe on the rights and interests of minors and hinder the smooth progress of litigation. Third, the design of rights and obligations should be legal and reasonable. (1) The rights of suitable adults. Appropriate adult intervention should achieve five functions: comfort, communication, supervision, witness and education. Based on the consideration of realizing the five functions, appropriate adults should be given the corresponding rights to intervene. [4] 1, supervision. The right of supervision is the unique right of suitable adults in the investigation stage. Compared with the pilot projects in Panlong District, Shanghai District and Tongan District, the provisions on the rights of eligible adults all think that they should enjoy the right of supervision, but the provisions are vague. 2. The right to participate in the trial. Minors are in the period of growth and development, their body and mind are not yet mature, and their ability to understand problems and communicate with others is lacking. The participation of suitable adults can make them calm down, accept interrogation and confess voluntarily while maintaining their physical and mental health. Minors also have the right to ask suitable adults they trust to participate in their own interrogation, so as to safeguard their legitimate rights and interests under special circumstances of interrogation. 3. Right to know. Because minors will be questioned at the stages of investigation, prosecution and trial. Therefore, at any stage of criminal proceedings, judicial personnel should inform the appropriate adults to be present before each interrogation, and at the same time inform them of their specific rights and obligations and introduce the case. 4. Assist in the right to education. The author believes that this right runs through the whole process of investigation, examination and trial. With the assistance of suitable adults, minors can express themselves freely and accurately, thus helping minors communicate with judicial personnel smoothly. 5. Right to know. Appropriate adults have the right to know the basic information of juvenile suspects' suspected crimes, physical and mental characteristics, hobbies, growth experience, family background, education status, daily performance and so on from the judicial organs in advance. 6. visit. After the interrogation, the appropriate adults who participated in the interrogation have the right to check the interrogation record, put forward opinions and suggestions on the correctness and completeness of the contents recorded in the record, and sign the interrogation record and the trial record. (2) the obligation to be suitable for adults. Defining the obligations of suitable adults is conducive to ensuring the full play of their intervention functions and avoiding negative effects. The author believes that the main obligations of eligible adults are: first, the obligation to be present in time. After the judicial personnel notify the appropriate adult, the appropriate adult shall arrive at the interrogation place within a specified reasonable time. Second, the obligation not to interfere in interrogation. Once the appropriate adults are involved in the proceedings, they shall not illegally interfere with the normal handling of cases by judicial personnel or illegally interrupt or influence the interrogation process. Third, the obligation of confidentiality. It is not allowed for appropriate adults to disclose the case and to help criminal suspects collude with each other. Fourth, the obligation to sign the record. After the interrogation or trial, the appropriate adult shall sign the record. If the transcript is not signed or refuses to sign, the interrogation transcript will be excluded because of illegal procedures.
References:
Xu Jianjun. A Review of the Research on Appropriate Adult Participation System? Journal of Guangdong Young Cadre College. Volume 23, No.75, March 2009.
[2] Yao. Appropriate adult intervention system in Britain and its introduction in China? China Journal of Criminal Law, No.4, 2004.
[3] Yao. Re-discussion on the appropriate adult intervention system? Investigation Forum, Volume 3. Chinese People's Public Security University Press, 2004.
[4] Yao A subtle concern for rights. Peking University Publishing House 20 10 Page 2 12.
Reflections on Rights and Duties Part III: Rights and Duties of University Teachers
Through the introduction of higher education laws and regulations and the rights and obligations of college teachers, we can understand the value of higher education law, so as to consciously study, publicize, maintain and implement it. Understand the legal rights of colleges and universities and college teachers, and consciously fulfill their obligations. Realize the rule of law, run schools according to law, promote the scientific development of higher education, and cultivate senior professionals with innovative spirit and practical ability.
Keywords college teachers; Higher education laws and regulations; Rights; accountability
In the modern society with all-round development of reform and opening up and rapid economic development, education is the fundamental way to realize the blueprint of a well-off society on the premise that science and technology are the primary productive forces. Therefore, higher education is an institution for cultivating outstanding talents and an important link in socialist construction. College teachers are the soul builders of the country's pillars. Facing this heavy responsibility, college teachers should deeply understand their responsibilities, rights and obligations under the guidance of laws and regulations. How should college teachers correctly understand and exercise their rights and obligations?
First, how to correctly exercise the rights of college teachers
1. Right to education and teaching
As a teacher, we should have a sense of responsibility, take teaching, scientific research and social service as our duties, and do it seriously and responsibly. Responsibility means that the actor fulfills his obligations, undertakes the prescribed duties and tasks, and accepts the reflection of the consequences of the behavior (rewards and punishments). Teachers should also be enterprising in teaching? In scientific research and social services, we should do everything possible to make progress and make a difference. As teachers, they have the right to organize classroom teaching independently according to the specific requirements of their school's teaching plan and educational workload, combined with their own teaching characteristics; Have the right to determine the teaching content and progress according to the requirements of the syllabus, and constantly improve the teaching content; Have the right to reform and experiment the forms, methods and specific contents of education and teaching for different education and teaching objects. No one may illegally deprive in-service teachers of exercising this basic right. People who are not qualified as teachers do not enjoy this right. Although qualified as a teacher, for those who are not employed or fired, the exercise of this right is at a standstill and can only be exercised when they are appointed. If schools and other educational institutions dismiss teachers according to law, it is not an act of infringing teachers' rights.
2. Right to academic research
Teachers should have academic freedom, at the same time, they should think purposefully and systematically about their teaching, scientific research and social service work, be brave and good at innovation, and make influential, effective and contributing educational achievements. Under the premise of completing the prescribed education and teaching tasks, they have the right to conduct scientific research, technological development, write academic papers and books; Have the right to participate in relevant academic exchange activities, participate in academic organizations established according to law and work part-time in them; Have the right to express their academic views in academic research and carry out academic contention. Teachers should pay attention to the relationship between teaching and scientific research when exercising this right, so that they can complement each other and better improve the quality of education and teaching.
3. Student management right
Teachers should care for students, be rigorous and eager to learn, be indifferent to fame and fortune, be self-respecting, educate and infect students with personality charm and knowledge charm, and be guides and guides for students' healthy growth. Have the right to teach students in accordance with their aptitude according to the educational laws, the characteristics of students' physical and mental development and the educational laws, guide students to study in a targeted manner, and give guidance in further studies and employment; Have the right to give an objective and fair evaluation of students' ideological and moral character, study, cultural and sports activities, labor and other aspects; Have the right to use the correct guiding ideology and scientific methods to fully develop students' personality and ability. When teachers exercise the right to manage students, they should pay attention to strengthening the management of students in all aspects, combine caring for students with strict requirements, and promote students' all-round development in morality, intelligence and physique.
4. Democratic management right
According to the Constitution, teachers have the right to participate in school management. Teachers are the main body of school education, and any work of the school can not be separated from the participation of teachers, who are both educators and managers.
5. Right to further training
This is the right of teachers to continue education. The rapid development of modern society and science and technology requires teachers to update their knowledge in time and constantly improve their own quality. As teachers, they have the right to participate in advanced studies or other forms of training to improve their ideological and political awareness and professional level. Educational administrative departments, schools and other educational institutions should take various forms and open up various channels, strive to create favorable conditions for teachers' continuing training, and effectively guarantee the realization of teachers' rights. Of course, the exercise of teachers' training rights should be carried out in an organized and planned way on the premise of completing their own work, and the normal education and teaching work should not be affected.
Second, how to correctly exercise the obligations of college teachers
1. Abide by the Constitution, laws and professional ethics and be a teacher. Constitution and laws are the basic codes of conduct of the state, social organizations and citizens. Any organization and citizen must abide by it. If teachers want to teach and educate people, they should abide by the Constitution and laws, and consciously cultivate students' legal concept and democratic spirit in education and teaching. Teachers are engineers of the human soul and are responsible for cultivating the next generation. While imparting scientific and cultural knowledge, they have an important influence on students' ideological and moral character and personality formation. Therefore, teachers should set an example and be a model.
2 to implement the national education policy, abide by the rules and regulations, implement the school's teaching plan, fulfill the teacher employment contract, and complete the education and teaching tasks. In teaching activities, teachers should fully implement the national policy that education must serve the socialist modernization, must be combined with productive labor, cultivate builders and successors of the socialist cause with all-round development in morality, intelligence and physique, strictly perform the education and teaching duties agreed in the teacher employment contract, complete the prescribed education and teaching tasks, and ensure the quality of education and teaching.
3. Care for all students, respect students' personality, and promote students' all-round development in morality, intelligence and physique. Personal dignity is a basic right given to citizens by the Constitution. Because students are educated in education and teaching activities, their personal dignity is often easily violated. As teachers, we should care about all students and treat them equally.
4. Stop acts harmful to students or other acts that infringe upon their legitimate rights and interests; Criticize and resist phenomena that are harmful to the healthy growth of students. It is the common responsibility of the whole society to protect the legitimate rights and interests of students and their healthy physical and mental growth. As a teacher, I naturally have this obligation. Teachers have the specific scope to fulfill this obligation. Mainly to stop illegal activities that infringe on the legitimate rights and interests of students in charge of education management in school work and activities related to education and teaching; Criticize and resist the unhealthy phenomena that appear in society and are harmful to the healthy growth of students' body and mind.
5. Constantly improve the ideological and political consciousness and the professional level of education and teaching. Education and teaching is a highly professional job, shouldering the mission of improving the quality of the people, which requires teachers to have higher ideological awareness and professional level. At the same time, this is also the requirement of social progress and scientific and technological development for teachers. Therefore, teachers should strengthen their study, adjust their knowledge structure, and constantly improve their ideological and political awareness and professional level of education and teaching to meet the actual needs of education and teaching.
Conclusion: Teachers' rights and obligations are unified and inseparable. No rights, no obligations, no obligations, no rights. The unity of rights and obligations has two meanings. On the one hand, it is the unity of rights and obligations, that is, legal relationship; The second is the unity of rights and obligations of both parties in legal relations. While the law endows the subject of legal relationship with rights, it must also stipulate its obligations. This right and obligation are corresponding, and this is no different from this. In the process of law enforcement, teachers should not only enjoy rights, but also earnestly perform their obligations.
References:
[1] Dai Zhongxiang, Zheng Quanxin. Introduction to higher education laws and regulations, Hubei People's Publishing House, 20 1 1, 5.
Guess you like:
1. Experience of studying party member's rights and obligations.
2. On the rights and obligations of learning experience in party classes.
3. Correctly understand party member's obligations and rights.
4. Summary of rights and obligations report of party member.
5. Experience of party member's conditions, obligations and rights.