| Under the background of market economy development,moral decline,the change of family structure of "421" and the normalization of "empty nest" phenomenon in which children live separately from the elderly,the spiritual comfort needs of the elderly can not be met,and even suffer serious damage.In 2013,the newly revised Law of the People’s Republic of China on the Protection of the Rights and Interests of the Elderly incorporated the contents of spiritual support such as "going home often" into the law.The right of the elderly to spiritual support was clearly recognized by the law,and the way in which the obligor fulfilled the spiritual support was clearly defined by the law.However,the law has also been heatedly debated by all walks of life.Opponents believe that spiritual support belongs to the category of moral regulation.It has abstract and emotional characteristics.When the obligor violates the spiritual support obligations stipulated by law,it is difficult for the obligor to perform the spiritual support obligations for the elderly by law.This is also the key to the effective implementation of such cases in judicial practice.The author insists on the supporter’s view that the spiritual support clause such as "often go home and see" belongs to the soft law clause,which has the functions of announcement,guidance and education.But as a law,it has the nature of hard law itself,and needs to be guaranteed by the "hard" ofgeneral law to effectively implement the clause.From the perspective of "often go home to see" clause,the author explores the dilemma it has encountered since its entry into law and practice,and ultimately improves the clause from the legislative and judicial levels on the basis of referring to foreign legislation on spiritual support.Exploring the operability of such a soft law clause and how to effectively implement it in social practice is of great practical significance to the protection of the spiritual support rights and interests of the elderly in China. |
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