(2) the right to operate;

(3) legal person property rights;

(4) Economic authority;

(5) Economic creditor's rights;

(6) Industrial property rights.

basic content

Economic rights Economic rights: refers to the qualification that the subject of economic law has to carry out or not to carry out a certain behavior by himself and ask others to carry out or not to carry out a certain behavior in the process of national coordinated economic operation in accordance with the law.

Social and economic rights of citizens include (1) labor rights and obligations.

1. The right to work refers to the right of citizens who have the ability to work to get a job and get paid for it.

2. Citizens have equal rights to employment, choice of occupation and labor remuneration. The state should strive to create more jobs and expand employment opportunities. No unit or individual may force others to work.

3. The state advocates labor competition and voluntary labor, and rewards model workers.

(2) the right to rest

1. The right to rest refers to the right to take a vacation or rest in order to protect the health of workers and improve labor efficiency.

2. The state has stipulated the vacation system, such as eight-hour work system, weekend system, vacation system, family leave system, etc. At the same time, the state develops various rest places and facilities.

(3) Property ownership

1. Scope-Private property that citizens can legally own, including legal income, savings, houses and other property.

2. Protection channels-state compensation in criminal incidental civil litigation, civil litigation and administrative litigation, etc.

3. Protecting citizens' legitimate property rights means protecting citizens' property inheritance rights.

(4) Retirees' right to life security.

1. Employees of enterprises and institutions and staff of state organs have the right to retire in old age when they reach a certain age and conditions.

2. The above-mentioned personnel enjoy certain wages and other living benefits after retirement.

(5) The right to material assistance

1. Prerequisites: ① Old age; 2 diseases; ③ Loss of ability to work.

2. Specific measures:

The state establishes and develops social insurance, social relief and medical and health undertakings;

(2) The state implements a retirement security system;

(three) the state and society to protect the life of disabled soldiers, pension families of martyrs, preferential treatment for families of soldiers;

The state and society help arrange the work, life and education of blind, deaf, dumb and other disabled citizens.

The relationship between citizens' basic economic rights and citizens' social and economic rights is an hermeneutic classification made by China constitutional scholars according to the provisions of the constitutional text, which generally includes citizens' property rights, survival rights, inheritance rights, labor rights, rest rights, material assistance rights, education rights and other specific rights. The basic social and economic rights of citizens have a high degree of intersection with what international human rights scholars call the second generation of human rights, but they are not completely coincident. For example, property right belongs to the first generation of three generations of human rights and is an integral part of freedom.

The new China Constitution stipulates that the social and economic rights of citizens began with the May 4th Constitution. Among them, in addition to the fundamental change of property rights through the constitutional amendment in 2004, this change includes constitutional thinking, rights content, protection methods and many other aspects. Although other social and economic rights have been comprehensively revised by the Constitution for four times, they are generally in different normative forms. The Constitution of the Seventh Five-Year Plan, which appeared at the lowest ebb of China's legal system development, ignored and denied many important systems and citizens' basic rights, but it also clearly stipulated in Article 27, paragraph 2: "Citizens have the right to work and the right to education. Workers have the right to rest, and they have the right to get material help when they are old, sick or incapacitated. " The reason is worthy of further clarification.

The arrangement of all rights systems is closely related to the value concept of rights. From the perspective of comparative law, there is a causal relationship between the inclusion of social rights in the constitutions of western countries and the emergence of the concept of social state. "The concept of social state was originally to correct the negative consequences brought by industrialization and capitalism, and its intention was to provide balanced measures for the disadvantaged groups in social reality, make up for their unfavorable foothold and enhance their opportunities to give full play." From "the responsibility of the state to take care of the society in order to avoid the social problems after industrialization and social deconstruction in the early stage, and to protect citizens from general life risks (birth, disease and death) with statutory compulsory insurance ..." [2] In China, the social rights clause is considered as the result of the nature of state power and the socialist system in the Constitution, which is the embodiment that the socialist system should be superior to the capitalist system. [3] What needs to be further explained is that the framers of New China advocated that the basic rights of citizens should be realistic. "Write what can be achieved now, and don't write what can't be achieved. For example, the material guarantee of citizens' rights will definitely expand in the future, but what we are writing now is gradually expanding ... "[4] Before the 1980s in China, China's comprehensive national strength was not strong, and the overall level of economic and cultural development was also low. At that time, the social and economic rights of citizens were systematically guaranteed. For example, the ownership system with public ownership as the core, the production and trade system with planned economy as the main form, the public medical system, and the "five guarantees" system widely implemented in rural areas. This kind of guarantee focuses on fairness and mainly meets the basic survival needs of the poor. The constitutional amendment 1993 made a major change to Article 15 of the Constitution. The original provision was: "The state practices a planned economy on the basis of socialist public ownership. The state ensures the coordinated development of the national economy in a planned and proportional way through the comprehensive balance of economic planning and the auxiliary role of market regulation. "It is forbidden for any organization or individual to disturb the social and economic order and undermine the national economic plan. The revised content is: "The state practices a socialist market economy." "The state strengthens economic legislation and improves macro-control. "The state prohibits any organization or individual from disturbing the social and economic order according to law. The revision of the constitution not only means a major change in China's economic system, but also means that a set of social and economic rights and interests protection system for citizens in the past can no longer meet the requirements of the socialist market economy, which is embodied in the following aspects: the level of urban and rural security is extremely unbalanced, and the level of security standards, the distribution of security facilities and the amount of security investment are obviously unreasonable; The standardization, institutionalization and legalization of social security are not high; The main role of the government in the whole safety work is not obvious. In the constitutional amendment in 2004, one paragraph was added as the fourth paragraph in Article 14 of the current Constitution, that is, "the state establishes and improves a social security system that is compatible with the level of economic development". Market economy is based on the principle of free competition, emphasizing maximum respect for individual interests and rights. The changes in the content and security system of China citizens' social and economic rights caused by the above-mentioned constitutional amendments need to be further studied.

On the nature of China citizens' social and economic rights, domestic scholars put forward their own opinions by using the research results of comparative law and the analytical tools provided by western constitutional law. Foreign scholars advocated that social and economic rights belong to a "programmatic provision" in the early days. For example, Japanese scholar Ito Zheng Zheng believes that this right is not a specific right in general private law, but only declares the political and moral obligations of the state in law, that is, only entrusts the state to take appropriate measures to maintain a healthy and educated minimum life for its citizens through legislative and administrative activities in the future; Based on such programmatic provisions, what kind of social security legislation the state adopts to protect the "minimum living" or how to concretize it administratively should be entrusted to legislative discretion or administrative discretion. Within such discretion, individual citizens cannot claim their right to exist. Following the theoretical proposition of "programmatic stipulation", later scholars put forward two different propositions: "abstract right" and "concrete right" respectively. The representative figure of the theory of "abstract rights" is mainly Mr. Matsumoto Gonggen of Japan. The main points of this theory are as follows: in the provisions of the Constitution on rights such as the right to subsistence, citizens are indeed given the right to ask the state to take necessary measures in legislative administration to maintain a healthy and educated minimum life, and citizens can take this as a legal basis to ask for legislation to implement relevant legislation to protect the right to subsistence, or ask the government to take corresponding measures to protect the right to subsistence; At the same time, the state has been given the obligation to legislate and take administrative measures to guarantee the "minimum living" of citizens; The right of existence stipulated in the constitution does not directly correspond to the specific right of survival guarantee of citizens; The civil rights and state obligations contained in the right to subsistence are abstract, not mandatory and not standardized in the trial. Therefore, when this right is violated or the state fails to fulfill its obligations, individual citizens cannot directly investigate the unconstitutional responsibility of state inaction according to the constitutional provisions that stipulate the right to subsistence. The representative of the theory of "specific rights" is heming, who first promoted Otsu. According to this theory, the right to subsistence is a specific legal right, not an abstract right that can be concretized by other specific legislation, nor a simple political right that only stipulates the norms of national legislation as programmatic provisions. The right subject of the right to subsistence is the citizens whose economic life is under the benchmark of "minimum living"; The right content of the right to life is to ask citizens to ensure that all citizens can live a "life like a human being" that guarantees human dignity; The actual object of the right to subsistence is the legislative and judicial departments under the system of separation of powers. Based on the theory of specific rights, we can draw the following conclusions: citizens have specific rights to the state, that is, they can request the state to take necessary corresponding measures in legislation and other state actions to fully maintain a healthy and educated minimum life, which is a constitutional obligation of the state; Judicial power has the legal obligation to implement judicial protection for the constitutional right to exist, and the constitutional right to exist clause itself has clear judicial normative effect. [6] These paradigms of analyzing the nature of rights abroad have certain reference value for building the basic rights system of our citizens, but they cannot be completely embedded in the basic rights system of our citizens. The reasons are as follows: First, the theory of the essence of rights is based on the political system of separation of powers, the market economy system of free competition, the national concept of a country ruled by law and a welfare state and other institutional facts. Such a whole set of constitutional design basis is either not adopted in China or temporarily unavailable due to certain conditions. China's current constitution is based on 1954 constitution, and its constitutional concept and foundation are quite different from those of western countries. The current Constitution stipulated that China should implement the market economy system only in 1993, and the institutional declaration of national measures was also in 1999 to build a socialist country ruled by law. Prior to this, the understanding of the nature and functions of the state and the constitutional understanding of the relationship between the state and the people were very different from those of western countries. Second, the current constitution does not clearly stipulate citizens' right to exist. Through the constitutional amendment in 2004, the provisions on establishing a social security system were included in Article 14 of the General Plan. In China's constitutional theory, the general provisions are usually regarded as national policy provisions, while other specific social and economic rights are stipulated in the basic rights provisions of citizens. However, the western constitution clearly stipulates the right to subsistence, the right to a minimum standard of living and other social and economic rights. In the constitutional style, these provisions are arranged in the provisions on human rights or basic rights of citizens. According to the general principles of constitutional text interpretation, we can think that the nature of rights under these two constitutional systems is different. Third, China's constitutional arrangements do not recognize the court's right to interpret and apply the Constitution. The so-called "constitutional judicature" has always been a proposition of theoretical scholars, but it has not been transformed into a formal institutional arrangement. The specific right of claim discussed in the theory of the essence of rights actually involves the right of claim in judicial proceedings. Fourthly, the logical premise implied in the theoretical discussion of the nature of rights is that there are clear boundaries between various state powers and the power scope of various state powers is clear. However, this is not in harmony with the institutional logic of the China People's Congress system. Paragraph 15 of Article 62 of our Constitution stipulates that the National People's Congress may exercise "other functions and powers that should be exercised by the highest organ of state power." Because the institution that interprets the Constitution is the NPC Standing Committee (the Standing Committee of the National People's Congress), early China constitutional scholars even claimed that the National People's Congress was a fully mature institution. 1999 constitutional amendment stipulates that "China will govern the country according to law and build a socialist country ruled by law". According to the principle of constitutional interpretation of systematic interpretation and teleological interpretation, although it can be logically explained that China accepted the concepts of limited state and limited government, how such an interpretation is compatible with Article 62 of the Constitution remains an urgent constitutional issue. Fifth, in the actual constitutional operation, the way to protect citizens' social and economic rights has always been to concretize the constitutional provisions. The 10th and 11th National People's Congress made people's livelihood legislation the focus of legislative work, and formulated many laws, including the law on the protection of minors, the law on the prevention of juvenile delinquency, the law on the protection of women's rights and interests, the law on the protection of the elderly, the law on the protection of the disabled, the law on the protection of consumers' rights and interests, and the law on regional ethnic autonomy. Once the operation of a certain system becomes a habit, it will support the stability and predictability of the overall operation of the rule of law and form an institutional space that fits the history and reality of a country. The above-mentioned legislative behavior of the National People's Congress is based on its own role consciousness as a representative organ of the people's interests, rather than on the guidance of a certain theory of the nature of rights.

The current constitution of China has the problem of insufficient supply of citizens' social and economic rights. For example, although the Constitution makes extensive provisions on the rights of vulnerable groups, it only involves some groups, including the elderly, the disabled, women and children, and ignores other groups, such as homosexuals and hepatitis B virus carriers. The right of material assistance stipulated in Article 45 of the Constitution is incomplete, because it does not stipulate the right of minimum living standard at the same time. The confirmation of social security right in the constitution only stays at the level of national policy, and the social security right has not been regarded as a constitutional right with complete legal nature; Some rights stipulated in the constitution are not embodied by basic laws and laws, but are protected by lower-level legal documents such as administrative regulations and local regulations, and the implementation effect is not ideal. In view of the above defects of the constitution, domestic scholars have put forward two different remedial ideas. One way of thinking advocates amending the constitutional provisions and clearly stipulating the right to social security and the right to the minimum living standard in the corresponding provisions of the constitution. [7] One way of thinking advocates exploring the rights not listed in the Constitution through constitutional interpretation. The reason is that the constitutional amendment in 2004 stipulated that "the state should respect and protect human rights" and established an open structure of China citizens' basic rights. In a sense, the human rights amendment clauses can be regarded as "unlisted rights clauses" in the basic rights section of China Constitution. Based on this clause, combined with other clauses in the constitutional text, there are some rights that are not listed in the constitutional text of China, such as the right to life, social security, freedom of migration and so on. , should be able to find the normative basis for the explanation. In a word, according to this idea, citizens' right to social security can be explained by "human rights clause" and Article 14 of the Constitution "[8]. Critics believe that in the current constitutional system of China, there is no institutional space for the existence of rights that are not included in the Constitution. The reason is that the establishment of the rights system not listed in the Constitution needs to be matched with the special system of constitutional interpretation organs, and it also needs to have clear general rights clauses in the constitutional text, and it also needs to establish a clear system of rights types, including human rights at the level of inherent rights, the Constitution in the category of basic rights, and legal rights at the general legal level. These conditions are both sufficient and necessary for the existence of unlisted rights system. [9] It is hard to imagine that in a country that adopts the constitutional interpretation system of the legislature, there will be a place where unlisted rights can survive. Because under this system, the interpretation organ is also a legislative and constitutional amendment organ, and the deficiency of constitutional rights clauses can be made up by constitutional amendment. The interpretation organ does not undertake the function of solving specific constitutional disputes, so it is difficult to make it have the motivation and institutional channels to discover unlisted rights.

The judicial protection system of citizens' social and economic rights has been adopted by more and more countries. As a country with common law system, the United States lacks provisions on social and economic rights in its constitution, and the protection of social and economic rights is mainly achieved through constitutional precedents. Therefore, the United States has many precedents in using constitutional judicial means to safeguard the rights and interests of vulnerable groups, involving women's equal rights, black people's right to education, employment rights, etc., and has taken many influential actions. With regard to the right to education, in the famous 1954 Brown case, the Supreme Court declared that the policy of "equal segregation" in primary and secondary schools implemented by various states was unconstitutional, thus protecting the right to education of blacks and having a far-reaching impact in the United States. American courts have also made a series of constitutional precedents to oppose employment discrimination and protect the equal right to work to protect the weak. In other common law countries, such as Britain, Australia, Canada and so on, there are many cases in which vulnerable groups are protected by the court through judicial channels. There are also many cases of protecting the rights of vulnerable groups through constitutional judgments in civil law countries. In the German Constitutional Court, women's rights have been given priority in judicial protection. On February 9th (1983) 30th, Italy's Constitutional Court ruled that the laws concerning nationality that discriminate against women are unconstitutional. In South Korea, the Constitutional Court declared in the case of "Teachers' Priority Employment" that Article 1 1 of the Law on Education for Public Officials provides that graduates from public education colleges and teachers' colleges have priority employment, which is unconstitutional. Although the above-mentioned judicial protection system of social and economic rights has made remarkable achievements, it still cannot be the logical premise for China to implement judicial protection of citizens' social and economic rights. The reasons are as follows: First, under the principle of rule of law, the operation of any system must be supported by constitutional norms. Otherwise, deviating from the constitutional text to create a certain right protection system is tantamount to mending the wound and will lead to drifting away on the road to realizing the rule of law. Second, the Supreme Court of China, marked by the judicial reply of the case of 200 1 Alignment Yuling, conducted the so-called "constitutional judicature" experiment. Practice has proved that this kind of experiment has seriously violated China's constitutional system. Finally, the Supreme Court had to rationally announce the abolition of judicial reply in 2008. Third, the history of constitutionalism proves that in the period of rapid social transformation, judicial organs should pursue a passive position in protecting the rights of classes and groups, maintain a modest character, and leave enough space for legislative decision-making and administrative policies. For example, the employment rights of college students and social insurance for migrant workers are social problems involving millions and tens of millions of people in China. If it is allowed to be resolved through individual judicial procedures, the court will be unbearable and the strong protection of civil rights will be in the foreseeable future. Politics is about everyone, and justice is only about routines and personal disputes. To paraphrase a popular western proverb, the most reasonable arrangement to protect the social and economic rights of China citizens at present is that politics belongs to politics and justice belongs to justice.