Studies On Legal Issues Regarding Social Security Funds Management

The modern social security system has been basically established following several reforms carried out at the end of last century. But the newly established social security system has incurred with a series of difficulties such as the serious shortage of social security funds, serious misused and misappropriated of the funds, difficulties to preserve and increase the value of the funds, ineffective supervision of the fund management. Besides the above problems, the financial and institutional crisis brought by the upcoming ageing population peak is also threatening our social security system. How to solve the problems of the social security funds management is not only a topic which should be considered by the economic scholars, but also should be a serious problem considered by the legal scholars from a deeper system level and legal relationships level. This paper will take relevant legal issues regarding the social security funds management as subjects. Making the effort to clarify the nature and the ownership attribution of different social security funds, try to find the appropriate social security funds management models and application of the law, further the above research results to establish the legal framework of the social security fund management etc. In the author's consideration, the successful solution of the above legal issues could not only contribute to the institutionalization or standardization of the social security fund management, but also guarantee the healthy development of the social security system. The author wishes to contribute her personal efforts to the construction of the legalization of China's social security fund management through this paper.The research approach of this paper is as below: integrating theory with practice and making foreign experiences serving China's practice, using the comparative analysis and empirical analysis methods to make the author's analysis and conclusion. After careful study on the foreign social security fund management experiences and problems of Chinese social security funds management, the author concludes that the clarification of the nature of different funds is the first step to management of the social security funds. Then selection for the appropriate fund management models and applicable law could be made based on the clarification of funds nature. Scientific and rational fund management structures and legal frameworks could be built up following the right selection of fund management models and applicable law. The legal parties, their legal relationships and their rights and obligations could be formed within the right fund management structure and legal framework. The social security funds could only be managed efficiently under the reasonable legal framework.In addition to the introduction, this paper is divided into four chapters.Introduction of this paper introduced the reasons and significance of this subject, scope of the studies and the definition of key concepts, research methods and main content of the paper, also the main academic point of views and innovation were described in this part.Chapter I Introduction of the basic legal thoeries on social security funds management. This chapter first gave a brief introduction and analysis on the basic Theoretical issues such as definition of the"social security fund"and components of the social security fund, nature and management principles of the social security funds. Basing on the above introduction, the author made a careful study on the various kinds of risks of social security funds management, point out meatures for the risk prevention such as selecting the scientific social security fund management models, choosing the right applicable laws, and establishing the scientific legal framework of social security funds management. The contents and research results of this chapter will make the necessary theory preparation for the subsequent chapters.Chapter II Studies on foreign social security funds management models and the applicable law. The main content of this chapter was about the study on the major foreign social security fund management models and the applicable law of the foreign social security fund management. Through the careful research conducted on the foreign social security fund management experiences, the author drew a conclusion that the foreign developed countries usually chose their social security funds management models in accordance with the different characteristics of their social security systems and the different nature of different social security funds. At the same time, based on findings of the common application of trust law to the foreign social security fund management, this chapter introduced the foreign scholars'attitudes to the application of trust law, the basic legal principles of trust law, as well as the development and evolution of trust law in the fields of social security funds management. The research results in this chapter made the necessary theory preparations for the third chapter on China's social security funds management and legal theory application for Chapter III.Chapter III Studies on China's social security fund management models and applicable law. Before studying on security fund management models and applicable law, the author first give her objective anaylsis on the problems and reasons on the Chinese social security fund manangement, and point out that identifying the nature of different funds is the key issue for the effective fund management. An incisive analysis was given on the nature of different funds. Basing on the research results of the previous chapters, the author made a proposal for the application of different management models for funds of different nature. A conclusion that trust law is the best choice for China's social security funds management was made based on the research of two perspectives. One is on the applicability of the trust law and the other is the feasibility of applying trust law. The conclusion of the applicability of trust law was made based on the match of trust law's basic functions and characteristics to the principles of China's social security funds management; and the effectiveness of trust law on solving the existing legal problems of China's social security funds management. The conclusion of feasibility was made based on the development of trust law and trust industry in China and the current social security fund management framework and the status.Chapter IV Studies on the legal framework of China's social security funds management and some legislative proposals. In this chapter, the author tried to make a clear design for the legal framework of our social security funds. Took the pension funds for example, basing the research results of previous chapters on the social security fund management models and applicable law, the author analyzed and identified the legal parties involved in different funds management legal frameworks, figured out their legal relationships and rights and obligations between the Parties. As for the proposal for legislation, the author stressed the necessity for the promulgation of"social security fund management law"and the reasons for publishing them as the separate law. At the same time, the author also tried to make her initial exploration on the legislation system and the main contents of the"social security fund management law".The last part is the conclusion of this paper.The author pointed out that for the establishment and improvement of the social security system and legislation of the social security funds management, a first step to be taken is studying and learning from the foreign countries about their experiences over the past 100 years for the social security fund management, which is essential in the circumstance of the global economic integration and the gradual integration of national legal systems. But in learning advanced foreign experiences at the same time, one should not be divorced from China's specific national conditions and the achievement and framework which had been made through the social security system reform and the existing institutional framework. An objective analysis should be made firstly on the nature of different funds within China's social security system. Basing on the identification of the nature of different funds, selection of fund management models and applicable law should be done. Only on the condition that appropriate management models and applicable law were correctly selected, the scientific legal framework of social security funds management could be established to structure the legal relationships of different legal parties and their rights and obligations. Legislation in advanced is the first foreign social security funds management experience we should take into consideration.The management of huge social security funds within a scientific legal framework is the safeguard for the safety, liquidity and profitability of the funds management, and also a guarantee for the stable operation and sustainable development of the social security system and ultimately to protect the stable and harmonious social order.