摘要
养老服务地方立法是养老服务法治实践的制度化成果,亦是社会服务制度化发展的重要本土资源。通过聚焦14个省级行政单位颁布的地方养老服务条例,发现目前的立法更多关注政府职责,未能厘清家庭赡养和社会化养老、普惠服务和特惠服务的制度区分,亦没有对老年人和社会主体的能动性给予充分关注。对此,养老服务立法应当彰显权利保障的立法理念,充分尊重老年人的权利主体地位;尊重老年人的多样性,以法律规范明确养老服务的多样化需求,并根据法律关系的特征实行分类调整;强化行政监管的同时创新治理方案,提供多元化的纠纷解决和救济渠道,切实保障老年人在养老服务中享有的权利。
The Report to the 20th National Congress of the Communist Party of China has proposed to pursue a proactive national strategy in response to population aging and develop elderly care programs and services. Providing equally accessible and fully ageappropriate elderly care services is an important prerequisite for ensuring adequate living standards of the senior citizens and their equal participation in social life;and it is also an important measure for China to actively respond to population aging. The Guideline to Promote the Development of National Undertakings for the Aged and Improve the Elderly Care Service System during the 14th Five-Year Plan Period has expressly stated that "we will promote the legislation related to elderly care services, and build a system of policies and laws for elderly care services that is guided by laws on the protection of the rights and interests of the elderly and on elderly care services, based on administrative regulations, departmental rules and normative documents and supported by relevant standards, so as to ensure that laws are put in place and observed in terms of elderly care services". The Social Development Affairs Committee of the National People’s Congress has also proposed to "actively seek to include making laws on elderly care services in the legislative work plan of NPC Standing Committee as soon as possible". Therefore, it is great timing to legislate on elderly care services.Local legislation on elderly care services is an institutionalized result of the rule of law practice of elderly services. By the end of 2021, 14 provinces(including autonomous regions and municipalities directly under the Central Government), including Beijing,Tianjin, Hebei, Inner Mongolia, Shanghai, Jiangsu, Zhejiang, Jiangxi, Shandong, Guangdong, Hainan, Guizhou, Gansu and Ningxia, had introduced 15 provincial-level regulations on elderly care services. Provincial regulations on elderly care services follow the basic principles of "people-oriented", "extensive and all-inclusive" and "joint contribution and shared benefits", and emphasize the policy of multi-level, diversified and systematic development. In terms of the content, most of the provincial-level regulations on elderly care services attempt to define the connotation and extension of elderly care services, focusing on the responsibilities and obligations of subjects on the supply side. This provides behavioral guidelines for families, markets and subjects of public welfare service, and accumulates experience for future legislation on specialized service as well. However, in general, the provincial-level regulations on elderly care services, which take "welfare supply and management" as the starting point, have failed to identify accurately the diversified needs of the subject of rights, leading to artificial identity differentiation;they have also failed to clarify the positioning of "all-inclusive" and "basic" services and the division of responsibilities among different service providers, making it difficult to build a multi-level service guarantee system;moreover, the service supervision mechanism is still featured by one-way supervision by the government, lacking sufficient exploration of cooperative governance by social subjects.Based on this, legislation on elderly care services should position itself as the rights protection law, highlighting the legislative idea of rights protection while respecting and accommodating the diverse needs of the elderly. On the normative level, the legislation on elderly care services should recognize the diversity of elderly care service types and make corresponding adjustments according to the characteristics of legal relationships. At the same time, legislation on elderly care services should fully respect the elderly as the subject of rights, innovate governance solutions while strengthening administrative supervision and provide diversified channels for dispute resolution and remedies, so as to effectively protect the rights of the elderly in elderly care services.
作者
刘远
LIU Yuan(Human Rights Institute,Wuhan University)
出处
《人权法学》
2022年第6期48-64,149,150,共19页
Journal of Human Rights Law
关键词
养老服务立法
地方立法
养老服务条例
老年人权利
legislation on elderly care services
local legislation
regulations on elderly care service
rights of the elderly
