The Discussion On The Cohesion And Adjustment Of Social Relief Legislation And Social Insurance Law

The 4th plenary session of 18 th CPC Central Committee had clearly put forward that we should accelerate the construction of a country under "the socialist rule of law",form a socialistic legal system with Chinese characteristics, perfect the laws and regulations on social security and social relief. The social relief law and social insurance law are two basic laws in social security legal system, exploring the coordination and cohesion of these two laws’ function and system is significant for perfecting China’s social security legal system, strengthening the construction of people’s livelihood security, promoting the national governance by law, achieving the modernization of state governance.The social relief law and social insurance law are in a basic position in China’s social security legal system, these two laws’ full implementation is conductive to reduce social inequality, resolve social conflicts, maintain social stability and achieve substantive equity and justice. Throughout the legislative history of the two laws, both social relief law and social insurance law have experienced a process from scattered fragments of legislation into a unified and comprehensive legislation, the legislation Idea has also showed a strengthen on the protection of human rights of citizens and a highlight of government’s responsibility. The introduction of "Social Insurance Act" in2010 expanded the scope of the application of social insurance, identified country’s clear responsibility in social insurance, at the meantime build a advance payment and recovery system of medical insurance fund and industrial injury insurance fund. While there are also problems in its legislation, such as positioning in the "affair" instead of "rights-based", too much declaratory and authorized clauses and the imperfection of relevant provisions, etc. Confronted with the disadvantages of "Social Insurance Act",as another important law in China’s social security field, the legislative process of social relief law attracted highly social concern, the scientific design and effective implementation of social relief law would undoubtedly compensate the defect of social insurance law to some extent, coordinate the implementation of the two laws, improve the level of social security of citizens. After several legislative plans, research and seek community views, China’s social assistance finally enacted in 2014 in the form of "Interim Measures of Social Assistance", as a response to the reality, "Interim Measures of Social Assistance" clearly pointed out in Article II that the social assistance system should achieve cohesion with other social security system.In order to achieve the cohesion on the system of social relief law and social insurance law, firstly we should define the theoretical foundations on system’s coordination and cohesion of social relief law and social insurance law. Through comparing the background and the value system of social relief law and social insurance law, we can see that the externalization of inner value and response to the social environment make social relief law and social insurance law has an important function of social security. With the popularity of development-oriented concept of human rights protection, in addition to the right of subsistence, the community members’ fundamental rights of development should also be guaranteed, the social security system of norms with a character of “relief” should be transformed into a “productive” social security mechanism. Meanwhile, from a psychological point of view, people’s social attribute makes people have different levels of social support need; therefore it is critical for building a multi-level social support network to make the vulnerable groups able to help themselves through the network. Modern human rights protection and contemporary social needs put forward higher requirements to perfect a country’s social security system, social relief law and the social insurance law need to play their shared social security capabilities effectively to help the citizens of the community fight multiple risks of modern society. In the structure—Function perspective, the effective implementation of two laws’ social security function not only subject to its social structure, but also subject to their own institutional system. Social security system and its design(such as the different legislative designs and combinations of social insurance law, social relief law and other laws) would affect the degree of realization of the social security function, on the country, whereas the specific social security function(expected)also promote the construction and improvement of different social security systems.Therefore, promoting the coordinated development of social relief law and social insurance law, perfecting the convergence of both institutional system and optimizing the combination of the two laws’ social security function is an effective approach to optimize the configuration of social security resources and effect.The result of specific research on the social security function that the social relief law and social insurance law have shows that the social security function that the social relief law and social insurance law have contains a certain similarity and coordination which offers the possibility to achieve institutional cohesion of the two laws; while the differences and complementarities in security coverage and objects, the way to take responsibilities, the security type and level of two laws’ social security function also provided the feasibility path to achieve adjustment of two laws’ system. On this basis,through the analysis of existing legal texts, there are still problems on guarantee targets,rights protection mechanism as well as security funds operation during the coordination of social relief law and social insurance law. Social relief law and social insurance law shall make appropriate adjustment to its drawback of text in existence, achieve convergence and complementary on their systems, integrate common mechanism of social relief and social insurance field, thereby maximize the social security function of the two laws, and achieve effective protection of the fundamental rights of citizens.