Research On The Legal Protection Of The Right To Social Insurance Benefits

As the material guarantee provided by the social insurance for the insured after being exposed to risks,its no doubt that to get the social insurance benefits is a right for the insured.On the one hand,the right to social insurance benefits is based on the basic social rights derived from the principle of the rule of law in the constitution,on the other hand,it is directly based on the social insurance legal relationship regulated by the social insurance law.The legislative establishment of the social insurance system is a typical legal practice for the state to fulfill the obligation of guaranteeing the basic social rights in the constitution.It also provides the institutional basis for the emergence of the social insurance benefits right.The right to social insurance benefits in the departmental law has also become a concrete manifestation of the basic social right in the constitution.The legal relationship of social insurance,which is regulated and legalized by the social insurance law,has the attribute of statutory debt in public law.The right of social insurance treatment is the core right content under the debt of public law in social insurance relations.In the survival of the legal relationship of social insurance,according to the satisfaction of the right elements,the social insurance benefits right presents three specific rights connotations: the possibility of social insurance benefits foresight,the expect to social insurance benefits and the right to claim social insurance benefits.Depending on the individual's prior payment nature of social insurance,social insurance benefits has the essential attribute of property rights in public law.In theory,social insurance benefits right as a legal right of citizens should be fully guaranteed.However,in the practice of China's social insurance system,it is facing a real dilemma that the social insurance benefits right is difficult to guarantee.This dilemma can be summarized from four aspects: the deviation of the concept of rights protection,the lower legal level of rights protection,the lack of normative system rules of rights protection and the difficulty of rights relief.Firstly,neither the legislation nor the administrative execution of social insurance benefits pay much attention to the right attributes of social insurance benefits,nor implement the fundamental concept of rights protection.Social insurance benefits have completely degenerated into the government's beneficiary payment.In the practice of the system,the concept of right protection gives way to the lower value objectives of social insurance administration,fund security maintenance and self-regulation of payment.Secondly,at the level of legislation and norms for the protection of the social insurance benefits right,there are obvious problems of lower level of norms.As a superior law,the social insurance law itself involves the provisions of rights protection,which are scattered and simplified.It lacks both principled protection and rigid protection.It relies on the way of vague authorization to formulate safeguard rules at the local level,which makes the protection of rights completely vacant at the legal level,while the various norms at the lower level are uneven and arbitrary,seriously weakening the protection of rights.Thirdly,in the design of the specific rules for the protection of the social insurance benefits right,there is no clear theoretical tool to support it.It is neither based on the theory of administrative acts nor on the theory of legal relations,but follows the internal rules of administration.In fact,the payment of social insurance benefits is running out of law.As the formulator and executor of the rules,the government completely dominates the payment of social insurance benefits.The absence of the social insurer as the real subject of obligation,and the insured members as the obligee also lack the identity of the insured as the subject of right,which is only positioned as a passive state beneficiary.The government exercises enormous discretion.The determination and adjustment of social insurance benefits depends entirely on the government's unilateral decision-making.Finally,in the aspect of social insurance benefits right remedy,the administrative reconsideration as a way of pre-litigation remedy is still unilaterally dominated by the government departments,coupled with the lack of substantive content of the review of the disputes over the payment of social insurance benefits,which makes this pre-litigation remedy model null.On the one hand,the judicial remedy,as the final barrier to the protection of rights,is limited by the lack of legal basis for adjudication,so it can only acquiesce that the government unilaterally decides the rationality of social insurance benefits.On the other hand,it generally adopts the way of privatization of social insurance treatment rights in public law,which leads to the loss of the function of externalization risk protection of social insurance independent of labor relations.The protection of the social insurance benefits right should be based on the concept of protection of the right to subsistence in accordance with human dignity under the basic social rights.As a concrete system,the insurance principle is only the means and way for the sound operation of the social insurance system.The implementation of the insurance concept derived from this is ultimately to serve the realization of the concept of social basic rights.Social insurance,as a practice of social security system to implement the basic social rights,its basic idea is to guarantee the right to subsistence in accordance with human dignity under the basic social rights.The protection of the social insurance benefits right is based on the implementation of this concept.Under the concept of guaranteeing human dignity of basic social rights,social insurance follows the principle of public assistance and emphasizes the fulfillment of state obligations.The demand for social insurance benefits requires the state to actively fulfill the obligation of payment,which includes both the obligation of system supply and the obligation of benefits payment to meet the protection of human dignity.The insurance concept of social insurance emphasizes the financial autonomy of the insurance system,so the protection of the social insurance benefits right should be subject to the prior premiums.At this time,there is an inherent conflict between the public assistance under the concept of human dignity protection and the self-help under the concept of insurance.However,the tension between the two concepts has both the basis and means of balance.The protection of human dignity has a natural consistency with the emphasis on individual self-discipline and the claim of individual responsibility in insurance,which is the basis of balancing ideas.Concerned that the social insurance public's support is also governed by the personal self-discipline emphasized by the protection of human dignity,at the same time,the concept of balance can be achieved through the exertion of the compulsory function of social insurance.The protection of social insurance benefits right should strictly follow the principle of legal reservation at the level of legal principles,and get rid of the internal rules of administration at the level of specific system design,and use the theory of legal relations as an analytical tool to shape the standardized rules of rights protection.From the point of view of legal principle,the protection of social insurance benefits right concerns not only the realization of the right to subsistence in accordance with human dignity,but also the realization of property rights in public law.Its basic right protection attribute determines that it should be included in the scope of legal reservation with the protection of citizens' basic rights as the core.The principle of legal reservation followed by the protection of the social insurance benefits right is specifically hierarchical legal reservation.That is to say,according to the legal form of different levels,the discriminant model based on the measurement of legal interests is introduced.According to the importance of reservations,it is determined which elements should be clearly stipulated by law and which elements are allowed to be determined by low-level legal norms,but they are still strictly bound by the principle of clarity of legal authorization.In the specific system design,we must break through the current social insurance payment model which belongs to the internal rules of administration,introduce the theory of legal relationship in administrative law into the social insurance system,and use it as a theoretical analysis tool of the social insurance benefits right protection rules.Focusing on the legal relationship of social insurance,we should shape social insurers who are independent of the government in exercising their rights and performing their duties.At the same time,we should endow the insured members of social insurance with the status of legal subject and right subject.Taking the legal relationship of social insurance as the basis for the change of the social insurance benefits right,and drawing lessons from the practical experience of foreign countries,to establish a mechanism for determining and adjusting premiums and benefits decided by both parties of the legal relationship of social insurance.The realization of the goal of social insurance benefits right protection needs to take the perfect right relief system as the ultimate protection barrier.The improvement of relief system needs not only to abandon our current pre-litigation administrative reconsideration system,which is not aimed at protecting rights,but also to construct a pre-litigation relief model independent of the government,and to open up a new path of judicial relief for the social insurance benefits right in the light of the current judicial situation and the reality of social insurance system.The social insurance benefits right is related to citizens' right to subsistence,which determines the typical urgency of the remedy.Perfect pre-litigation relief path can satisfy this right relief demand.From the practice of social insurance system in Germany,Japan and Taiwan region,it is worth learning from the mature system experience of our country to construct a professional social insurance dispute review body independent of social insurers and the government.As far as the litigation relief of the right to social insurance treatment is concerned,on the one hand,in view of the fact that China's social insurance legislation lags behind and the payment of social insurance treatment mainly depends on a large number of normative documents,we can draw lessons from the constitutional review mechanism in German and Taiwan region jurisdictions,and combine with the practical basis of the new normative document review system in the Administrative Procedure Law of our country.In the judicial trial of disputes over social insurance payment,the judicial remedy of the right to social insurance benefits can be realized by actively practicing the normative document review system.On the other hand,in judicial practice,we should give full consideration to the attributes of public law rights of social insurance benefits right,abandon the idea of private law protection of public law rights,and fully incorporate social insurance benefits right into the scope of public law rights relief.