| In order to implement the national strategy of actively coping with the aging of population,it necessary to construct a rule of law system for the older persons suitable for the reality of aging society.Although the current study of elder law has paid much attention to the concept of active aging,such concept is actually interpreted as certain part of rights of the older persons or principle of elder law and the inherent transformation of perspectives and development of ideas are ignored.The most important points of active aging lie in the following two aspects.Firstly,aging is not a passive process but can be active.Secondly,the old age is not separated state of human beings but represents successive,universal and dynamic life course phase.Therefore,the thesis focuses on the basic proposition of constructing the rule of law system for the national strategy of actively coping with the aging of population--how to achieve the integration of active aging and the rule of law system.To achieve such aim,the thesis incorporates parts of ideas and concepts of life course research and try to analyze the historical facts of the development of the legal system of elder law since the foundation of PRC.And the thesis proposes a new theoretical approach to explain the legal practices of the elder law in China that the elder law is the law concerning how the individuals coping with aging.The key point is to regulate the various social relationships in the process of aging through the mechanisms of family,market and social cooperation and promote social cooperation that extends from generation to generation by means of the rule of law.As a result,every member of the society could achieve active aging and all human rights of everyone could be realized throughout the whole life course.The first part explains the background,main purpose and the main research results about the jurisprudence of elder law.This part try to point out that the current theories of elder law is based on the age-defined subjects whose characteristics and needs are often interpreted by physical decline,intellectual limitations and certain negative psychological characteristics.The dynamic developmental nature and socially constructed attributes of aging are ignored and the age-based stereotypes are implied.Such theory on elder law couldn’t meet the demand of the national strategy of actively coping with the aging of population.From the perspective of overseas research on elder law,the research results of elder law is often closely integrated with the research progress of gerontology.As the idea of active aging is widely recognized,contemporary theories on elder law increasingly emphasizes the heterogeneity and subjectivity of older persons.The artificial age-based compartmentalization and social policies based on protection and welfare logic have been widely criticized.It can be seen that the upgrading and transformation of academic discourse and conceptual system under the guidance of the active aging has become a major development trend of elderly law research in an aging society.Finally,this also provides a preliminary explanation of key concepts and life course perspectives on aging,the older persons and their rights,as well as the basic framework of the thesis.There are totally five chapters in the thesis which can be divided into three parts.The first chapter focuses on the relationship between aging,the rights of older persons and elder law.Active aging is an ideal solution for the human beings to cope with the negative effects of the aging and also is a human rights-based approach to aging.Active aging is widely recognized as an important goal of contemporary social policies and legal norms about older persons and population aging.From a life course perspective,old age the result of aging.The surface logic of elder law lies in focusing on the systematic rights dilemmas faced by the older persons,taking their situation and needs into account and developing special rights protection programs for them.The underlying logic of elder law is that the rights dilemma of older person originates from the “negative” aging.therefore,the elder law must regulate and promote the development of various practical solutions which are used to cope with aging formed in the long-term social life.Through these two approaches,elder law aims to create a social environment in which everyone can achieve active aging and to ensure that everyone can fully realize his or her all human rights in the process of aging.On the basis of what was explained in the first chapter,the second chapters and the third chapter try to summarize the “facts” of legal system for elder law since the founding of PRC through vertical and horizontal perspectives.The second chapter divides the history of legal system of elder law since the founding of PRC into three stages: the initial stage under the planned economic system,the defining stage in response to the reform and opening-up and the transition stage in which the ideas of active aging are gradually incorporated.The legal system of elder law in the initial stage was centered on the life course of working people in the planned economy and two mechanisms for coping with aging were formed: the“unit security system” as the main axis and the “family inter-generational support” as the secondary axis.The legal system of elder law in the defining stage responded to the development needs of the reform and opening-up era,in which the “unit security system” evolved into the “society security system” under the socialist market economy.And the “family inter-generational support”,which originally played a secondary role,was also confirmed by law and the familial support and maintenance system was formally formed.With the introduction of the “active aging” strategy,the legal system of elder law in the transition period began to pay attention to promoting the market subjects and social organizations and emphasizing the construction of a multifaceted and collaborative mechanism for coping with aging.The role of the elderly and empowerment by supporting the development of their own abilities and values in the relevant mechanisms are also emphasized.Many new ideas are gradually integrated into all aspects of the development planning of coping with population aging.However,due to the relative lag in the legislative activities,the new ideas have not been fully reflected in the legal system,nor have they been truly integrated into the theoretical research of elder law.The third chapter summarizes the current legal system of elder law.The first section explains the premise of the legal system which means that the older persons are equal right subjects.On the one hand,the law recognizes that the rights enjoyed by individuals do not differ according to age.On the other hand,the law responds to the special difficulties faced in the pursuit of rights and provides special protection for older persons.The second section mainly summarizes the regulations of familial support and maintenance,which is based on family relations and aimed to to ensure that older persons can get support from their families.The third section focuses on the“social legal system” about older persons and aging.The relevant regulations are mainly about social security,social services and livable environment.The aim of regulations in this section is to constructing a social cooperation order led by the state so as to ensure that all older persons can maintain an appropriate standard of living,the highest attainable health standard and actively participate in social life in a favorable social environment through social security,market mechanisms and public welfare services.On the basis of fact analysis,the fourth and fifth chapters try to make a more in-depth analysis on the two parts of the legal system,which is the familial support and maintenance system representing Chinese tradition and social legal system in modern society.The thesis will analyze the source of the contents and concepts,explore its institutional logic and promote some ideas for future development from the perspective of life course and active aging.Family is an aging-coping mechanism which represents Chinese cultural tradition.The fourth chapter attempts to explain that the traditional family relationship with "filial piety" has been criticized and its family structure and lifestyle have been almost completely changed.However,the concept that older persons should get support from their families is still supported by people and confirmed by the legal system.The logic behind such phenomenon is that the traditional legal system of elder law actually has constructed a stable and self-consistent life order with the family as the core,so everyone who obey the law could plan the whole life course(including life after death)and get support in their old age.Family members of different generations also cooperate under the constraints of morality,customs and legal forces to jointly deal with various vulnerabilities and challenges brought by individual aging.Nowadays,the kinship represented by the family still has a unique significance for personal value production and emotional satisfaction.So Maintaining family inter-generational cooperation should become an important part of the legal system of elder law.At the same time,the traditional inter-generational cooperation rules are still with certain value to the development of elder law in modern age.For example,property flow,life care and upbringing among inter-generational family members should be recognized and maintained in a legal method to strengthen inter-generational ties.We should properly use administrative and judicial means to support young family members to fulfill their obligations to their older parents and the older family members should also be supported to participate in inter-generational interaction.So an inter-generational cooperation order to deal with aging could be promoted.China’s elder law system are developed through the absorption and transformation of relevant systems in developed countries.Therefore,grasping the development context of the legal system in developed countries also has an important values for understanding China’s reality.In the process of modernization,the trend of“individualization” gradually disintegrates the traditional aging-coping mechanism,while the new aging-coping mechanism centered on the labor market and public welfare leads to “negative” aging,which makes the older persons become “welfare recipients” and “social burden” in the context of population aging.In order to turn negative aging into positive aging,many developed countries that have entered the aging society began to promote institutional reform in relevant fields.The main trend of the reform is to promote the subjectivity of older persons through multi-level institutional options and promote the initiative of the elderly through the multi-agent cooperation mechanism.So unity and cooperation of social members of different generations are shaped on the basis of fairness and mutual trust and the human rights in the aging society could be realized by older persons.In general,the main conclusion of thesis is that the rule of law for older persons in aging society should not only emphasize the protection of the rights of individuals who are already older persons,but also regulating the aging-coping mechanism formed by people in the long-term practice of social life.The law should clarify the rights and obligations of participants,create good environment and promote the unity and cooperation of social members of different generations.So everyone can realize active aging and all human rights of all people in the whole life course could be realized. |
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