Study On The Social Insurer

The social insurance legal relationship is the basic complement of the jurisprudential study of social insurance. The social insurer is the most important legal subject and plays a core role in the social insurance legal relationship. This dissertation is an attempt to make a comprehensive study on the system of the social insurer. It mainly cover five aspects:Chapter One defines the conception of the social insurer. As with the commercial insurance, the social insurance has a long history. From the mutual cooperative insurance to the Germany profession-associated type of social insurance (Bismarckian Welfare System), to the Social Security Law in the United States of America, to the universal-welfare social insurance (Beveridge Model), and to the Chilean System, the social insurance experiences a long history, and during which it derives from the commercial insurance on the one hand, and goes on along its own track in the other hand. The homogeneity between the social insurance and the commercial insurance determines the nature of the insurance of the social insurance and restricts the border of state intervention. But the heterogeneity implies that the social insurance is not the branch of the commercial insurance, the social insurance possesses its own mechanism. If the theory of legal relationship is applied to the study the system of social insurance, it is meaningful to the study of the social insurer multi-dimensionally and dynamically. The social insurer should be defined accurately, and it refers to the subject whosets up the legal relationship with the insurant and can run the social insurance business according to the law.Chapter Two inspects the types of social insurer. As an important component of service administration (Leistende Verwaltung), the administration of social insurance possesses distinctive nature of social law. From all over the world, there are three types of social insurer, including administrative agencies, public self-governed corporations and corporate juridical person respectively. All types of them are formed after a long process, and they are affected by some complicated factors, such as the economic system, the political system, historical and cultural traditions, and etc. As long as they maintained the basic features of the social insurance, they are no good or bad. Currently, the social insurance agency is not the genuine insurer of Chinese social insurance legislation, and it should be constructed in terms of independent subject, independent organization, independent financial and etc.Chapter Three allocates the rights and obligations of the social insurant. In the occasion of the type of the centralized and unified management, the social insurance fund was separated from the social insurant, and the social insurant has no right to operate and manage the social insurance fund. Beyond that, the social insurant should have two key basic rights, both the right of claim to the contributions and subrogation rights.Chapter Four analyzes the internal governance of social insurance. Different types of social insurant adopt different forms. The public self-governed corporation lays emphasis on participation of all stakeholders, decentralized management, legal supervision and internal power balance. The administrative agencies focuses on leadership decision-making, centralized and unified management, execution by district or branch offices and strong external supervision. The corporate juridical person operates in accordance to the Corporation Law, especially paying more attention on compulsory legal provisions and the protection to the insured's free rights of choice. In China, the system of stakeholder-governance should be established.Chapter Five centralizes the relationship between the social insurant and the social insurance fund. There are two patterns in operating the social insurance fund. One is the type which the social insurant itself operates and manages the fund, the other is the type of the trust management. The latter include the centralized trust management, donor participation trust management and fully market-oriented trust management. In these three types, the status of social insurant is different. In China, the ownership of the fund for individual accounts and the pooling account fund in the basic old age insurance fund is different, the nature of trust is also different.