论工会权力与会员宪法权利的冲突与协调

工会权力①作为一项隐蔽的社会公权力,其权力行为如对劳动者组织工会享有批准权、将工会会员资格与分享公共福利挂钩、调配处置下级工会财产等,已与会员受宪法保护的基本权利如结社自由、财产权等发生冲突。而在现有法制框架内,囿于民事诉讼审理对象之有限性和行政诉讼受案标准之藩篱,二者冲突的诉讼协调途径遭遇梗阻。"有权利必有救济"、"有权力必有规制"之基本宪政原理,要求宪法必须发挥其"公民权利保障书"和"权力规制最高法"的效力,有效规制工会权力、保障公民权利,协调二者之间的冲突。通过构建宪法诉愿诉讼制度,能够弥补诉讼协调机制之缺漏,进而有效化解工会权力与会员权利之间的冲突。

On the Conflict and Coordination between Labor Union Power and the Members' Constitutional Right

Labor union power as a kind of public social power,which are not easily perceived.In fact,the labor union power has already come into conflict with the members’ fundamental rights protected by the Constitution,such as association freedom,property rights,and so on.However,under existing law,because of the restriction to the trial object in the civil proceedings and the barriers to acceptance standards in administrative litigation,the method of litigation in order to harmonize with the contradiction between labor union power and the members’ constitutional right was limited."Where there is a right,there is a remedy","where there is a power,there is a regulation",these are basic constitutional principles,they call the Constitution must act as "the Civil Rights Books" and "the Supreme Power Regulation Law",to regulate the labor union power effectively and protect the civil rights in order to coordinate the contradiction.By creating the systems of constitutional complaint,we can remedy the omissions of the systems of litigation and coordinate the contradiction between labor union power and the members’ constitutional right efficaciously.