Research On The Legal System Of Community Care Service Subject

Community care service is a Chinese institutional arrangement to cope with the risk of old-age care caused by the aging of the population and the weakening function of the family care.It is based on the family,relies on the community,and is carried by the professional service agencies to help the elderly be able to lead a security aged life in a familiar family and community environment.At present,sociology,management,economics,law and many other disciplines regard community care services as an important research direction both theoretically and practically.Compared with the prosperous research findings in other disciplines,the research of community care service legally is still in its infancy;the theoretical breadth as well as depth is obviously insufficient,and the available legal countermeasures are quite few.Out of the theoretical impulse to improve and the practical needs of the community care service legal system,the thesis takes the subjects of community care service as the entry path,follows the research designs from normative interpretation to system construction,and applies the theories and research methodologies of law,economics and management comprehensively.Its purpose is to construct a scientific,pragmatic and reasonable subject legal system which will satisfy Chinese national circumstances.Thus the rights of the community care service subject can be justified,the responsibility of the community care service can be shouldered reasonably,the legal regulations of the community care service can be in order and the community care service can work effectively.The subject of community care service is the organization and individual that enjoy the corresponding rights(powers)and obligations in the legal relationship of community care services.According to the legal nature of community care service and the actual role of each subject in the operation of the system,the subjects of community care service can be classified into four categories: beneficiary subject(elderly),paying subject(government),implementing subject(community service agency)and guidance subject(community).The legal system for the subject in community care service is to identify the subject qualification and subject status of the mentioned subjects with law.With the distributions of rights and obligations among the subjects,this legal system can protect the elderly favorably and redistribute social resources.The adjusted targets and methods highlight the principle to focus on the people's livelihood,the principle of sociality and the principle of mutual assistance in social law.So far,China has formed a subject legal system of the community care service based on the Constitution and centered on The Law to Protect the Rights and Interests of the Aged.Relying on the administrative regulations and local regulations,the legal system takes administrative pensions as subjects.However,there are still obvious defects in the system.That is,firstly,the legislation lacks attention to the “subjectivity” of the elderly.The demand expression and rights relief channels of the elderly are not smooth,which seriously affects the “precision” and “fairness” of the community care service,which is expressed as the unfulfilled rights of the beneficiary.Secondly,although both the Constitution and the law have confirmed the government as the subject to shoulder the responsibility in the community care service,but it does not explain clearly the specific items that governments should be responsible for.The unclear explanation leads to the phenomenon of mutual excuse and the phenomenon that even no one is responsible for the situation are very frequent in the fund supply and quality supervision of services;thirdly,the value principles of the current institutional systems orient too much on transaction security.The designs for the community service organizations attach more importance on “access” but neglect “withdrawal”;the access is too demanding while the withdrawal is too easy.Moreover,the relevant regulations are scattered and complex,lack authoritative and unified standards,hinder the community service agencies to participate.Fourthly,the community tends to be administrative severely.It has assumed too many excessive tasks assigned by the grassroots government so that limited number of the community workers are not compatible to serve for the aged.As a result,their guiding roles are void.With the analyses of the causes of the referred problems above,we can find that the government has been not fully aware of the community care services and lacked of preparations due to the influences of long-term negative ageing concept.It only adopts the remedial legislative approach of “ deal with problems on an ad hoc basis”.Worse still,the functional transformation of government was not in place and its improper management of “moderate” supervision have ultimately undermined the integrity and continuity of the legal system of the community care service.The subject is the center of the legal relationship of community care service.Therefore,the improvement of the legal system of community care service must rely on to improve the subjective legal system and reconstruct the rights and obligations of the subject.The elderly are the main beneficiaries of community care services.The acquisition of this qualification stems from the legal confirmation of the community care service.The community care service right is universally enjoyed by the elderly based on citizenship.It requires the state to provide the right of community care services aimed at improving the quality of life of the elderly.It is based on the right to social security and the core value of “human dignity”.The community care service right can be transformed into a real interest by means of a complete beneficiary qualification evaluation system.Therefore,it is indispensable to establish a nationally unified evaluation system for beneficiary qualifications.In addition,by expanding the scope of administrative litigation and developing administrative public interest litigation and by broadening the solution to the disputes in community care service evaluation,the community care service provides comprehensive protection for the realization of the rights of the beneficiary subjects.The government is the subject of the payment for community care services.This is determined by the nature of the state and the legal nature of community care services.The government's responsibility for payment in community care services is concentrated on both the supply of funds and the regulation of services.In view of the system defects of unclear government responsibilities,the paper draws on the core ideas of “trust-agent” theory,public product level theory and fiscal decentralization theory,and uses the law and economics game model and the cost-benefit model to measure and simulate the “moderate” range of government supervision.With this basis,it proposes legal suggestions to increase the central government's fiscal transfer payment,to improve the community care service fund pooling level,to transfer the regulatory concept from management and control to containment,and the supervision mode from ex-ante supervision to post-event supervision.Community service agencies are the subjects of community care services.The establishment of its main status is the result of the joint effect of the welfare state crisis,population aging and theory of welfare pluralism.Allowing and encouraging community service agencies to participate and rational regulation have become a common choice for the legal system of community care services in all countries.Drawing on overseas experience and combining with China's reality,it is necessary to unify the basic requirements for community service agency accesses at the national level,restore the qualification review system for community care service practitioners,and integrate the withdrawal system to link the community service agency withdrawal system with the bankruptcy system.At the same time,a non-bankruptcy exit system should be built.For the new type of community service agency-social enterprise,its legal status should be confirmed in a timely manner,and its scope of scope and profit distribution should be strictly restricted.The community is the guiding body of community care services.The legal nature of the community is the grassroots mass autonomous organization,which is responsible for the publicity and education of the old-age service legal policy and the organization and management of service projects.In practice,the supposed role of the community conflicts with the actual state,which makes the function of the community difficult to play.The community should be given legal personality,and the legal relationship between the community and the government should be defined as “administrative contract”.Based on the “community care service management entrustment agreement” signed with the government,the community would exercise the management right independently.The status of the organization as the “self-governing” community can be regressed and consolidated,which would allow the community to fully demonstrate its value in the process of guiding the aged care service.