The Legalization Countermeasures Of Social Support Fees System

The partial adjustment of childbearing policy once again makes the social support system become a particularly appealing target. For a long time, the weak law consciousness of part of the government staff as well as the defects existing in the standardized system has brought many problems to the practical operation of the social support system. Therefore the call for abolition becomes a hot topic in the society. But the abolition of the system cannot be determined due to part of illegal action of the individuals. In terms of basic state policy of family planning, the social support system is not necessarily the best, and it also is not the worst system. Therefore, taking a part for the whole is not desirable. In October 2014, “Decisions of the Central Committee of the Communist Party of China on Certain Major Issues of Comprehensively Promoting Rule by Law" once again emphasized the importance of “rule by law”. In November 2014, "Regulations of the Collection and Management of Social Support Fees(Manuscript)", which is a practice of the State Council in the field of "the rule of law". In this context, it is necessary to carry out systematical research on the social support system, defining its specific properties, justifying the necessity of its existence, pointing out the current the problems existing in the process of operation from the perspective of normative writing and practice, and then putting forward legalization countermeasure. Based on the research, the paper hopes to make contributions for promoting the legalization of the social support system.First of all, definition for the nature of the social support system is of great necessity. The specific nature of the social support system, for a long time, has been controversial. And it is either be defined as "administrative levy" or "administrative punishment". According to the original intention of establishing the social support system, namely a compensation for social public investment and environmental burden, the social support system shall be defined as administrative levy. Specifically, there are the following reasons: firstly, reproductive rights are the inborn rights of human beings. Thus, unauthorized offspring should not be the illegal behavior that will trigger the administrative punishment. Secondly, the law basis of the system is not mandatory, and the policy "a couple for one child" belongs to the advocacy obligation. Thirdly, although China has not defined the nature of “social support fees” in regulations or the above level, the relevant departments have defined it as an administrative levy for many times through other regulatory documents which is also widely accepted by recent judicial practices. Finally, under globalization, the guarantee for basic human rights has been accepted. Therefore the social support system shall be defined as administrative levy.Secondly, it is necessary to discuss the operating status of social support fees system, including the justification of the necessity and the discuss on existing problems. The following factors can be adopted in the justification: firstly, the basic national condition of having large population base provides the soil for the continuous existence of the system. Secondly, the environmental right is the unity of rights and obligations, and the citizens should take responsible for maintaining the justice of intra-generation and inter-generation environmental rights and should not infringe upon the due environmental rights of other citizens. Moreover, the rights are relative. Although the citizens shall have the reproductive rights, they also shall not abuse the reproductive rights, otherwise the country has the right to interfere in(i.e. to impose social support).Finally, a complete legal norm must contain assumptions, processing, and sanctions. If the whole family planning is regarded as a legal norm, then there must be "sanctions" ensuring the effectiveness of the rules.The following questions exists in the operation of the social support fees system: firstly, the cart-before-horse levying subjects. The family planning departments at the county level which are supposed to perform the levying duties delegate all the levying authority to the township government or sub district offices; secondly, the levying objects of social support fees contains some objects with questionable legality. Part of the levying object are not in conformity with the original intention of the social support system; thirdly, the levying standards are not unified with too much discretion power, which makes the system lose its due seriousness; fourthly, the provisions of the regulatory documents on the procedure are almost blank, which is not conducive to the protection of the legitimate interests of the administrative counterparts; fifthly, the violent law enforcement images emerge in endlessly. Other rights of citizens are tied with the levying status of the social support fees, which seriously damages the personal rights and property rights of the administrative counterparts; finally, the lack of necessary supervision and inspection in fund management and usage has led to the disorder in funds management and usage.Finally, it is necessary to reform and reconstruct various problems from internal and external system. Firstly, eliminate the internal logic errors, including specification on the levying subjects and the levying objects. The county family planning departments recover all delegated levying power. In view of the huge workload, family planning departments of towns and sub district offices can be changed to the local agencies. Take the occupation status of social and natural resources as criterion of determining the levying objects and eliminate the conditions which are not in conformity with the original intention of the system. Secondly, establish an unified standard and standardize the discretion of levying standard. The levying standard should be the product of "per capital occupation of public investment * floating multiples”. The "per capital occupation of public investment" is adopted to reflect the system, and form a set of program determining the "floating multiples". Moreover, improve the levying and management procedures of social support fees and introduce into the statement system, the defense system, and the hearing system; as for the execution of levying, the execution writ mode can introduced into;at the same time, replace the "bundled" law enforcement with of the enforcement credit system of social support fees; force relevant agencies to implement strict management of fees and publish the direction for use with the per capita occupation of public investment published last year. Finally, establish and improve the matching interests guidance mechanism of family planning,so as to reduce the resistance for the system operation.