摘要
法治不仅要求国家对个人权利的干预必须得到议会法律的授权,也要求国家的社会给付必须具有议会法律的基础。不过,对于后者,德国联邦社会法院并未十分严格地适用,其允许由议会通过预算但没有具体法律依据的国家给付。同时,社会给付须具有法律基础,并不意味着关于社会给付的任何规范都必须确立一项法律保障的请求权,行政部门在所谓的裁量给付中具有一定的裁量空间。自1975年起,德国再次开始将社会法编纂为《社会法典》,不过这一过程尚未完成,且仍存在一定问题。学理上,社会法通常被划分为四个部分,即社会保障、社会补偿、社会支持和社会救助。此外,德国还建立了单独的社会法院,其具有三级审判结构,以联邦社会法院为最高审级。社会法内容的发展尚未完成,人口变化和数字化对社会法提出了两大挑战,将导致未来的立法变革。
The concept of the rule of law can be understood in two ways.On the one hand,it is a matter of binding the order of the polity to the principle of justice.And on the other hand,it is concretely about ordering the polity primarily through laws,namely through parliamentary acts.This latter point of view has determined the conflict between the old monarchs and the younger democratic forces in many European states in recent centuries.In social law,this conflict over the parliamentary law did not play a role at first.This was for two reasons.Firstly,since the 19th century,many regulations on social security had already been standardised by parliamentary acts,so that there was no need for a dispute over the question of parliamentary involvement.Secondly,those regulations that only provided for benefits,but no interventions,were in any case not covered by the compulsion of parliamentary regulation.Nevertheless,German legislation has endeavoured to standardise the entire matter as far as possible,even and especially in social law.This is why§31 SGB I was enacted in 1975,which requires parliamentary regulation not only for state interference,but also for state social benefits.However,case law has not been too strict in applying this provision and has also declared those state benefits permissible for which there is no legal basis other than the budget passed by parliament.Moreover,the compulsion for a statutory regulation does not go so far that a provision on social benefits would always have to establish a judicially enforceable claim.The so-called discretionary benefits are a category of benefits for which the administration decides in essential respects whether or not to grant them.This decision cannot be fully reviewed by the courts.Thus,although there is parliamentary control,the parliament,as legislator,can grant the administration freedom over its decisions.German social law has been codified in stages since late 19th century.However,this consolidation remained incomplete.It was not until 1975 that a new attempt
出处
《环球法律评论》
北大核心
2024年第2期5-19,共15页
Global Law Review
