免于贫困的权利及其法律保障机制
汪习根免于贫困的权利及其法律保障机制
On the Right to be Free from Poverty and It’s Legal Mechanism
期刊名称：《法学研究》
期刊年份：
作者：汪习根
单位：武汉大学法学院
中文关键词：人权;免于贫困的权利;平等发展权;国际法
英文关键词：human rights;the right to be free from poverty;the right of equal development;international law
中文摘要：
减少贫困问题是一个国际学术热点。现有的“基于人权的减贫方法”无论是在法律本体论还是规范实效性上都具有不可克服的缺陷，应当转变为“免于贫困的权利方法”。免于贫困的权利是人类享有维持体面生活所必需的物质资料和文化产品，并通过获得均等的减贫机会，参与、促进减贫并分享减贫成果之积极行为来实现的权利。该权利与人的尊严密切相关，具备人权的逻辑要素，且不能被国际人权公约所列举的人权形式所替代或覆盖，因而是一项独立的人权。应当在全球层面构建免于贫困权利的新型义务谱系和法律实施机制。
英文摘要：
Poverty has been among the international academic hotspots and research on this issue may be summed up as six perspectives, including the income approach, the equality approach, the capability approach, the basic need approach, the approach based on human right, and the responsibility approach. These points of view, all being right-based approaches, are no more than the modern versions of classical theories of human rights which have inevitable defects both from the aspects of legal ontology and the actual effects of legal norms. They should be replaced by the approach of right to be free from poverty. The right to be free from poverty, from the perspectives of social solidarity and global justice, can be defined as a right of people, as individuals and groups, to obtain necessary physical and spiritual materials for a decent life, which is realized by the positive act of them to participate in, contribute to and share the achievement of the process of poverty reduction. It is not only necessary but also rational to construct this new concept of the right to be free from poverty reasonably. The right to be free from poverty is closely bonded to human dignity and has all the acknowledged elements of a right. Also, it is a right different and independent from the existing forms of human rights enumerated in the Covenants on Human Rights (1966) including the right to live, the right to health, the right to food, the right to housing and the right to work, therefore can not be replaced or covered by them, which has been proved by empirical studies from legal sociology. The stereotype of treating the reduction of poverty as a pure moral obligation should be broken, and a new pedigree of obligations to serve the implementation of the right to be free from poverty should be established. The foundation of the reduction of poverty will be established only when the transformation within this pedigree, that is, from moral obligations and the obligations with good faith to the institutional obligations, contractual obligations and interventional obligations, is finished. The path we have to take to achieve the reduction of poverty is to design a forcible legal mechanism which consists of five parts of empowerment, regulation, monitoring, cooperation and remedy.
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