| Disability is an evolving concept, affected not only by the various interpretations, descriptions and classification methods, but also by people's ever-changing cognition, ideas, attitudes, and comprehension. With the progress of the human rights cause and the development of the disabled people's movement, the notion of "disability" in each country has gradually transformed from the emphasis on the individual body damaging to the social environment constraints of the disabled, mainly focusing on the adverse effect of social factors on disabled persons to participate in society and enjoy rights. The idea of disability has changed from a medical pattern to a social pattern.Disabled persons shall enjoy equal rights with ordinary people in political, citizen, economic, social and cultural fields, and other aspects. However, as the most difficult group, only declaring they equally enjoy the rights prescribed by the constitution and the law with ordinary people is insufficient. They also possess a unique system of rights, mainly including the right to non-discrimination, the right to acquire reasonable accommodation, the right to live independently and integrate into the community, and the right of self-determination. Those rights are so specific that they play a unique role in protecting the human rights of disabled people.In recent years, governments at all levels in China attach great importance to the affairs of the disabled, greatly guaranteeing the rights and interests of the disabled, and make remarkable achievements, but there are also some problems. Combining with the practical survey data, from a perspective of the implementation of protection law for the disabled, this paper discusses the main issues on the protection of the disabled persons'rights:the current living standard and quality of persons with disabilities is low, some even living in difficulty, and the basic right to subsistence is not well guaranteed; there is quite a distance to realize the target that everyone enjoys the rehabilitation service; the employment discrimination in many districts and areas is still severe, thus the realization of the disabled persons'employment rights is far from ideal; the school enrollment rate of disabled children is not high and so forth. Based on the above issues, this paper analyzes the reasons why those problems arise, mainly including:the functional division and cross phenomena are obvious in the management system, and especially the guarantee system for the rights and interests of the elderly and the disabled is split, resulting in scattered resources and inefficiency; the expression mechanism of interests of persons with disabilities is not perfect, thus their interests of the demands cannot smoothly transfer to the decision-making departments; the disabled have a lower voice of authority, and the procedure to establish a protection organization of the disabled persons'rights and interests is complicated, which make it difficult to "hold together" to safeguard legal rights; the financial and tax security mechanisms are not in place, the promotion, implementation and monitoring mechanisms to protect the rights of people with disabilities are inadequate, and the right relief mechanism is incomplete, and so forth.The third chapter of this paper introduces some practice and experience of the protection of disabled people's rights and interests in foreign countries. On the idea of rights protection of persons with disabilities, the United States, Japan, South Korea have early accepted the disability idea of a social model, and the concepts of integration and reasonable accommodation have also been accepted by many countries. In terms of education for the disabled, the education system design in the United States, Britain and other countries reflects the respect for personalities, and those countries have adopted the inclusive education idea. In regard to the protection of the rights of persons with disabilities in rehabilitation, Japan, Britain and other countries have emphasized the responsibility of states, by means of legislation, making efforts to guarantee the persons with disabilities to obtain rehabilitation services. Employment is the high frequency area of discrimination of the disabled people, also the key area of the rights and interests protection of the disabled. The United States, Korea, Japan and other countries although practice differently, all focus on the non-discrimination of the disabled, noticing to balance the rights and obligations of employers to promote the employment for the handicapped. With respect to the basic living security for the disabled, every country stresses that necessary measures need taking to safeguard persons with disabilities to live in dignity, among which, the practices in Britain, the United States and Korea are all representative, worthy for China to learn.Idea is a main line of this paper, which believes that the problems existing in the safeguard of rights and interests of persons with disabilities are closely related to the lag of ideas. To strengthen and improve the protection of rights and interests of persons with disabilities, we must renew our idea. Therefore, in the fourth chapter, this paper specially discourses five new ideas of rights and interests protection of the disabled needing to be established as soon as possible:disability idea of social pattern, integration idea, special support concept, the concept of universal design,. Those concepts have not been fully appreciated in our substantive work for the disabled, some even rarely heard. The establishment and popularization of these concepts are the premise to reconstruct the safeguard institution for the rights of persons with disabilities and improve laws and regulations to protect the interests of persons with disabilities.New ideas must produce new systems. In the fifth chapter, compared with the basic principles set up in the United Nations'Convention on the Rights of Persons with Disabilities and the requirements proposed to contracting states, according to the ideas which should be obeyed to protect rights and interests of persons with disabilities, this paper puts forward the idea of remodeling the disability system. Nowadays, we should reconstruct the following six systems:changing the special education-dominated educational model for the disabled, to construct an inclusive education system led by the integrating education; insisting the principle of children priority, to establish a comprehensive rehabilitation system of children rescue; directed by the balance of rights and obligations, reconstructing employment security system for the disabled; taking the " deinstitutionalization " as a goal, to improve the home care system for the disabled; reconstructing the rights protection mechanism of the disabled; coordinating the needs of the elderly and the disabled, to establish long-term care system; setting up decision-making assistance system, to guarantee the right to self-determination of persons with disabilities, and so forth.The sixth chapter is the further extension of the fourth and fifth chapter. To comply with the new concept of rights and interests protection for persons with disabilities, which should be established, we have to improve the current laws and regulations. This chapter from a microscopic view, introduces several key points which need to be revised and improved in the Law on the Protection of Persons with Disabilities, and proposes revising suggestions on specific legal provisions, mainly including:clarifying the concept of " disability " in the law, to establish a new disability idea; confirming that persons with disabilities can acquire the right of reasonable accommodation, the right to live independently and the right to integrate into community in accordance with the law; modifying provisions of employment security for persons with disabilities, to establish mechanisms for targeted recruiting civil servants with disabilities; perfecting the social security system for the disabled, and improving community care mechanism; increasing the fixed representation system, specially representing persons with disabilities; setting up a full time members system with disabled people, and improving law enforcement supervisory mechanism for the disabled; and so forth. The last part of this paper briefly introduces the envisage of establishing a long-term care system in China. The long-term care system in China is the "last safety net" for disabled persons, is the requirement to promote the optimization of medical resources and rational use, and is also the requirement to improve life quality of the disabled. Current laws and regulations are not able to provide legal basis for the long-term care insurance system, thus it is necessary to enact a separate long-term care act, clarifying the pattern of Chinese long-term insurance system, funding mechanisms, rights and obligations of the parties and so on. |
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