A Study On The Legal Problem In Advance Payment Of Social Insurance Funds System In China

Advance payment of social insurance funds, established in People’s Republic of China Social Insurance Law (referred as the Law below) which came into force on July1st,2011, can be regarded as an important break-through in social insurance area as a innovative system. The system has been further refined by the Interim Measures for Advance Payment of Social Insurance Funds (referred as the Interim Measures below). From legislature layer, the system can be divided into advance payment of medical insurance and advance payment of work injury insurance. Both have emphasized on protecting the citizens’legitimate rights to access social insurance yet with different focuses. The advance payment of medical insurance aims at dealing with problems in which the injured are not able to be treated on time due to a third party infringement, while the advance payment of work injury insurance aims at tackling the problems in which the employee has no access to work injury insurance allowance or incapacity benefits when employers fail to pay work injury insurance premiums in accordance with the law. Under the current circumstances of our country, with the continuous development of our economy and the steady progress of our people’s livelihood, a sound social insurance will become one of the highlights in future, which all calls for unceasing improvement of our social insurance system. At the present stage, our country has basically established a fundamental medical insurance system with a wide coverage and a comparatively-complete work injury insurance system. However, some problems existed in the practice have led to situations in which people are likely to be trapped in troubles when they have no access to in time treatment. Therefore, the establishment of advance payment of social insurance funds can be also regarded as the transition and replenish for current social insurance system. Nevertheless, advance payment of social insurance funds has raised debates among scholars and employees from social insurance agencies for it is beyond related principles and rules in previous legislation. First, in previous legislation, the medical insurance payment excluded the situation in which the cost shall be covered by the third party, and the work injury insurance payment took payment in accordance with law as its pre-condition; second, the unclear resource of the right and obligation of advance payment has made it difficult to identify the property of right of advance payment and right of recourse, which also hasn’t been formulated in previous legislation; last but not least, how to define the relationship between advance payment and tort compensation still remains unsettled. These theoretical and practical problems have made the effect of advance payment systems unsatisfying during its two years implementation. In this vein, this paper intends to raise suggestions for the improvement of the advance payment system through analyzing the Law, the Interim Measures and local legislation regulations, so as to make the system more practical.This paper can be divided into three parts:elaboration, research and refinement and focuses on existing problems in advance payment system from both theoretical and practical layers. The elaboration part starts from elaborating the concept of advance payment of social insurance funds and relating legislation, attempts to identify and categorize advance payment of social insurance funds, gives the categorization criteria of its own, and primarily describes the content of the advance payment of social insurance funds system. This part also gives a clear clue of the legislation of this system by elaborating relating domestic legislation and studying regulations related to the system. The last section of this part analyzes the research status quo and value of advance payment of social insurance funds system. The second part first introduces relevant regulations on advance payment applicable requirements in present legislation, then analyzes problems caused by imperfection of legislation, followed by the study on situations like the third party refuses to pay or uncertain criteria. In this part, the paper stresses that the party that applies for advance payment, the application coverage of advance payment and time limitation shall be clarified, the court shall be the legal identification institution, the party that can apply for advance payment of medical insurance shall be insurance participants, the party that can apply for advance payment of work injury insurance shall be employees that have labour relationship with employers and that have labour relationship with illegal employers and the time of advance payment shall be one year after it is confirmed that neither the employer nor the third party would pay. The third part of the paper analyzes the enforcement of right of recourse in advance payment of social insurance, as well as identifies the property of the right of recourse, clarifies the enforcement coverage of right of recourse and discusses the recourse difficulties confronting social insurance agencies. This part also gives suggestions in refining recourse mechanism in the system, including establish special sections in social insurance agencies, set up special funds in medical and work injury insurance funds, fix a time limit of recourse and define clear responsibilities of relevant bodies.This paper studies the legislation content, enforcement effect, rationality and components of advance payment of social insurance by normative analysis on the basis of legislation, thus to clarify both theoretical and practical issues of the system. Then the paper gives some perfection analysis by literature review and comparative analysis, as well as learning some points of views of domestic scholars, borrowing some legislation principles from abroad and Taiwan District, concluding relevant suggestions from scholars of other field on existing problems in the system and elaborating the differences of advance payment of social insurance between our country and other countries or districts. This paper hereby aims at providing assistance in the refinement of this system in the future.