An Empirical Study On The Protection Of Spiritual Support Rights And Interests Of The Elderly

Spiritual support is an important obligation of family members to the elderly.The Law on the Protection of the Rights and Interests of the Elderly enacted in 1996 stipulates that the supporters should fulfill their obligations of spiritual support for the elderly,but it has not made detailed provisions.Article 18 of the Law on the Protection of the Rights and Interests of the Elderly,revised in 2012,clearly stipulates the spiritual support of the elderly.But because of the implied moral restraint and the ambiguity of the provisions,it has aroused heated controversy in the academic circles.The controversy focuses on three aspects: Firstly,should spiritual support be legalized as a moral requirement? Secondly,as the representative clause of spiritual support,Article 18 has many defects.Can it be well implemented in judicial practice? Thirdly,how should we improve the spiritual support clause? The academic circles have done a lot of normative researches on this issue,ending with different opinions.However,few people have done empirical research on the judicial adjudication of this provision.Article 18 has been implemented for more than five years.Does it confirm or refute the concerns of the academic community? What is the current situation of the implementation of Article 18 and what problems have arisen? How can we improve it? No scholar has done systematic research.This paper takes the current situation of judicial decisions analyzed in Article 18 of the Law on the Protection of the Rights and Interests of the Elderly as the research object,and uses the method of empirical research to analyze the situation of spiritual support cases since 2013.It is found that judicial practice confirms some academic concerns,but also refutes some academic concerns.Article 18 can be implemented in the administration of justice,but the judgment is confusing.Therefore,this paper,combing the academic proposals with the status of judicial adjudication,puts forward practical suggestions for improvement.This study is helpful to enrich the study of spiritual support in theory and to provide reference for the legislation of spiritual support in practice.This paper is divided into five parts.The first part is the introduction.First of all,it explains the background and significance value of the research,and summarizes the existing researches on spiritual support in academic circles.Then,it is the research design of this paper,which explains the research object,research ideas and research methods.Finally,it points out the innovation and shortcomings of this paper.In the second part,the author combs the evolution of spiritual support into the law and the controversy of the academic circles about spiritual support into the law.The author divides the controversy of the academic circles about spiritual support into three sections: the first section is the controversy of morality and law in the spiritual support law;the second section is the controversy of the legislative defects of spiritual support;and the third section is the controversy of the legislative proposals of spiritual support.In the third part,the author makes statistics and analysis on 290 disputes of spiritual support cases on the Internet,and finds out some characteristics of spiritual support cases.For example,from the case of spiritual support online,it can be found that the disputes of spiritual support reached a peak in 2014,and then fluctuated steadily year by year;in 290 cases of spiritual support,women accounted for a larger proportion of the plaintiff;families with many children were more prone to spiritual support disputes;plaintiffs had more differences in understanding of family members;most plaintiffs could not sue for spiritual support without financial support;when judges made judgments,73% of the cases would cite both paragraphs 1 and 2 of Article 18;and on the frequency of visits,more judges tend to use months to measure,etc.The fourth part is a rethinking of academic disputes based on the statistics of 290 judgments.It is found that judicial practice confirms some academic disputes and refutes some academic disputes.The fifth part is the author's own suggestions based on the theory and judicial practice: defining the concept of spiritual support;defining the scope of family members;formulating quantitative reference factors for spiritual support;pre-mediation of spiritual support cases;and building a trinity of family,society and government security model.