Researches On The Legal System Concerning Social Securities For The Disabled

More than 83 million people in China are disabled, who are directly affecting the life of their family members, reaching 260 million in total. The disabled will exist in the society for a long time and they are a special group of people who are large in number, faring hard in life and lacking competitiveness. No other groups of people low in social status are comparable to them in extent and duration of hardship. On the one hand, the disabled are tortured not only by their diseases and disability but by social prejudice and discrimination. On the other hand, the factors causing disability in the society are on a rise, which gives an increasingly bigger impact. A fairly well-off society is not totally well off if the disabled are not well off. The scientific development is not true in the real sense of the word if the cause of improving the life of the disabled is not properly developing. The social harmony is no harmony at all if there is no harmony between those with disability and those without.From the perspective of Chinese history and its tradition, China had in her ancient times bumper ideas of social securities for the disabled. However, due to the absence of records and as a result of historical limitations, those ideas appear to be preliminary, sporadic and non-systematic. If viewed from the angle of logic, those ideas can be put into four categories:humanity and universal humanitarianism, man-orientedness and benevolent government, causal effect of being kind and sympathetic, and relief through the efforts of the patriarchal clan. These ideas were either used as the basis for legislation of the time or existing in the ideal of the society then. The best of those ideas and the core institutions resulting from them are inherited by later generations, which not only prompted the establishment of the traditional social security system for the disabled but also gave guidance to the policy-makers in the following dynasties as to the formation of regulations concerning the disabled. Some of the regulations were effectively enacted, causing innovative impact to the society and some were not put into effect or became merely formalistic. To sum up, regarding concrete programs, what is the most representative form of the relief for the disabled is adoption by the state, reduction or exemption from taxes and corvees, relief in kind and job offers to the disabled based on ability evaluations. With a view to systems and conceptions, what is the most advanced is the conception of the state obligations. In order to carry out the relief programs and enact the laws and regulations concerning the social security of the disabled, the local and the central government in all the dynasties in Chinese history acted as the main force in shouldering the responsibility, supporting the cause by establishing necessary social systems, setting up institutions and appointing officials. Funds and resources were raised for material and financial guarantees. Civilians were encouraged to help each other and give donations which led to effective enhancement for government relief. The above-mentioned ideas and practices were in concord to a degree with the social values of the time, showing progressiveness, with the state as the leading role and basic force. But owing to the limitations of the time and social classes, the relief for the disabled had its inherent defects in failure to give regard to natural rights of the disabled, their independent personality and legality. To establish the modern system of the social security for the disabled, a practical attitude should be adopted that sticks to the facts of history, based on scientific researches that assess the values of those ideas and practices so that innovations can be achieved in the present social systems on the basis of inheriting the old system.In today's world, the social security for the disabled has achieved great development, becoming more and more important in the whole system of social securities and its status is constantly improving. Beginning with the relief work for the wounded and disabled in the World WarⅡ, international organizations, including the United Nations, have come up with a series of conventions, resolutions, manifestoes, and guiding principles for actions concerning the guarantees for the disabled in terms of employment, daily life, recuperation, education, proper environment and so on. Those documents have formed the basis for the international laws concerning the social security of the disabled. Especially prominent is United Nation's Convention on the Rights of Persons with Disabilities which is regarded by the United Nations as one of the biggest projects of the century and as the first international convention especially intended to guarantee the rights of the disabled. This UN document has enabled the 650 million people with disabilities to have a special international convention to protect themselves. In the past 100 years of development, all the countries have been on the road to improve the legal system for social security, with the western developed countries taking the lead. In helping the disabled, America lays stress on their employment and their self-reliance through helping them finding jobs, on education and placement service and on recuperation and integrating themselves into the society. The states take advantage of the market and mobilize the power of the society. The method adopted by America has its own special character and uniqueness, showing originality and practicality. In Germany, many laws have special stipulations, regarding the disabled as a special legal fact. It gives the disabled the special favor and welfare pensions, solid job security and perfect social service, paying attention to combining state's intervention with social services, guarantees for daily life with employment promotions. In Japan, since the end of the Second World War, the country has established its own legal system for the social security of the disabled, concerning employment, education, recuperation, welfare, disability pensions. Adhering to its own traditional culture, it combines the efforts in legislation with the establishment of security systems, paying attention to giving aids as well as to promoting employment. The Japanese government works together with all walks of the society, making laws on all levels, with different institutions to carry out their functions and with multiple programs being carried out to guarantee the basic life and rights of the disabled. In Hong Kong and Taiwan of our country, the legal systems, combining the modern conceptions of the international community and advanced systems with an eye to China's excellent traditional culture and ethical rules, are in a healthy state, with all-round guarantee programs and social services. In a word, experience from foreign countries is advantageous in that it can help promote the construction of legal systems by renovating conceptions, satisfy special needs while providing all-round guarantees, promote active guarantees by offering passive guarantees and mobilize the power of all sides to work with the government, the leading force. Of cause, it is also important to take care and to be on the watch for the defects and problems such as the huge pressure caused by the increased expenditure in guarantees, the fairly big disparity between the actual result and the goals and the lack of the effective support for the civil rights of the disabled.China's modern legal system of social security for the disabled started at the beginning of the founding of our country, going through the periods of initiation stage, beginning stage, pause and setback stage, reinstatement and reconstruction stage, and reform and development stage. At present the social security of the disabled in our country has been markedly improved in terms of recuperation, education, employment, daily life, environment and so on. In the respect of establishing organizations, staffing, functional institutions, government funding and social support, supervising and legal aids, China has adopted a series of measures and basically formulated the legal system of social security for the disabled, with constitution as the guidance, with the Law on the Rights of Persons with Disabilities as the core, and with the related laws as the foundation and with the local regulations as complements. Nevertheless, the speed of helping the disabled out of poverty is not fast enough and the general extent of relief is still limited. In the aspect of social insurance, social aids, welfare pensions, the disabled are still falling far behind the average level of the society and disparity is even having the tendency to become wider. The most obvious is the lack of guarantees in service, including the lack of special-favor guarantees, the lack of special provision and balanced provision. The cause also suffers from unreasonable system, lack of necessary organizations and institutions, insufficient facilities, insufficient staff and so on. The social security system for the disabled is still on a low level which forms a sharp contrast with the difficulties and the needs of the disabled in China, incomparable with the fast progress in the cause of human rights and the quickened step in the building of a harmonious society.The social security for the disabled carries with it the universal elements in the whole social security and more importantly it carries the special character on the basis of universality. The theoretical basis for the legal system of the social security in China should give a prominent position to humanitarianism, justice theory, the concept of human rights guarantee and modern views about the disabled. Therefore, the pattern of social security, which is the derivative and embodiment of the conceptions about the disabled, should be the pattern of social security with the work benefits for the disabled:We need to optimize the participation environment for the disabled and use it as a means to construct a three-dimensional structure which covers the three basic elements—insurance, relief and welfare for the disabled—and includes three basic needs - employment, education and recuperation--with the framework of the general system of the social security as the basic point, and with emphasis put on the efforts to satisfy the basic needs in life and to maintain equal rights. The social security for the disabled, in following the general law and basic principles of social security, should lay emphasis on its individual character and its inherent demands, sticking to the legal principle of coordinating special guarantees with moderate guarantees, upholding the principle to keep a balance between demand guidance, carrying out guarantees with an eye to different classifications, adhering to the unification of passive and active guarantees and keeping the strategy of combining the leading efforts from the government with the participation of the society.The basic experience and lessons have shown that whether the social security for the disabled can development or not depends decisively on whether or not the society has formulated a reasonable and scientific legal system. In order to effect a fast qualitative development we need to replace with a reasonable, scientific legal system complete in functions the conventional way that relies on the driving force of policies. While researching into the law-making mechanisms concerning the social security for the disabled and giving prominence to latitudinal design and interconnection of legal systems, we should at the same time keep an eye on the development at home and abroad, paying attention to the three stages—legislation, execution and jurisdiction—so as to construct a inclusive, reasonable, scientific and feasible legal system. In terms of its constituents, the three—general, special and relevant-- legal systems should have their respective areas as well as interconnections:The general legal system includes such basic elements as the insurance, relief, welfare etc. In raising the standard, the state can grant the disabled the general favors and special favors. Special legal system covers the basic needs such as employment, education, recuperation, barrier-free environment and so on. According to different classifications, special needs of the disabled are satisfied so as to deliver to them the high quality guarantees and special guarantees. Relevant legal system concerns the obligation of social security for the disabled, services and legal aids etc. It gives priority to include the systems in social welfare, community guarantees, legal aids, etc. showing the special attention and support given to the social security for the disabled. In terms of the mode of legislation, the legal systems of social security for the disabled in all the countries of the world can be roughly categorized into three basic type: the unified mode, the separate mode and the mixed mode.In order to match the mode of guaranteeing the rights of the disabled, and in order to be in concord with the mode of legislation in terms of social security on the whole, and in order to give respect to the tradition of our country and face up to the actual conflicts, our country should choose the "mixed mode" or the "integrity mode", which, on the one hand, should unifying the general social security system of our country and, on the other hand, should give separate consideration to the construction of special social security system based on the differences. In terms of obligation systems, the obligations on the part of the state, government, society, the associations for the disabled, families, individual persons etc. should be clearly stated in the formulation of legal systems, establishing a powerful social security responsibility system with each realizing its areas of obligations, which will ultimately promote the thorough transition from the moral obligation to legal obligation.Only when the way to give relief and aids to the disabled has actually transformed "from contract to status" can the job of establishing the healthy legal system of social security for the disabled be done and only in this way can the theory of constructing a harmonious socialist society be well received and only in this way can the disabled realize their dream to fully enjoy the right of social security.