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Research on the Legal System of Social Security in Process of Urban and Rural Integration in China

Author: YangHua
Tutor: FengYanJun
School: Jilin University
Course: Civil and Commercial Law
Keywords: Urban and rural integration Legal systems of social security The right tosocial security
CLC: D922.182.3
Type: PhD thesis
Year: 2008
Downloads: 2122
Quote: 11
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Abstract


Strong social security policy and multidisciplinary characteristics oftenmake researchers on the social security law was puzzled even disoriented. Onthe one hand, social security law late start, the lack of rich theoretical andpractical basis fulfillment, academic tradition has not yet taken shape, whichmakes the social security law research of very difficult; On the other hand,economics, sociology and other academic research results achieved are so thickand more complete, and often make the law research on social security lost"Law Taste" and independent research directions. This article holds that thesocial security law research must respond to reality, and the results of researchon other subjects precisely provides us with a good empirical material.This paper is on the basis of these empirical material trying to use law andthe legal elements of the basis of analytical tools (system, subjects, rights,liability, etc.) analyzing legal system related issues in the process of integrationof urban and rural of social security.By comparison China’s urban and rural social security system status quo,that is the dualistic urban and rural areas of China’s social security systemmodel, it has the typical“to urban centre”system features. There are manydrawbacks on this model system: artificial separation between the urban andrural development and exchange, a deterrent to the free movement of membersof the society, resulting in unequal opportunities and the fact that all the results;not conducive to requirements of the market economy on the unity of the establishment of the labor market, contrary to industrialization, urbanizationand modernization requirements of the development, goes against harmonioussociety spirit of the times.In theory sector, the social security reform of the urban and rural dualisticthere have long been calls, on the topic of integration of urban and rural,scholars are regularly affirmed two different perspectives. With social securityin the global scope of the re-affirmation and the central policy graduallybecome clear, positive view becomes the mainstream. This paper furtheranalyzes the necessity and feasibility on integration of urban and rural socialsecurity, preliminary study on the path of social security system for urban andrural integration. From the law perspective, the integration of urban and ruralsocial security will be defined as: State or Government in the development ofthe social security laws, policies, we should consider the co-ordination of urbanand rural social and economic development status and future plans for thebalance of the social security system arrangements for nationals of each oneproviding equal social security rights. More integration of urban and ruralsocial security should be regarded as a long-term goal of struggle, emphasizedbenign results of the integration of urban and rural social security. China’ssocial security has been with the realization of the conditions of urban and ruralintegration, and localities have also emerged the integration of urban and ruralsocial security practice mode, these are the integration of urban and rural socialsecurity system framework to pave the way for the early.The integration of urban and rural social security system constructionshould be sub-item, step-by-step start gradually, with the level of social andeconomic development of a highly developed, and the gradual disappearanceof the gap between urban and rural and urban social security integration can bethe ultimate realization. China’s current social relief from the start of urban andrural integration, and build the right to life of all citizens of the bottom line ofprotection and social insurance contributions nature, the internal heterogeneity of the rural areas as well as the development of non-equilibrium of the region,decided to urban and rural areas in China’s social insurance only sub-regionalintegration, sub-item, sub-level domain gradually start..The right to social security is the core concept of the social security law.The right to social security is a typical example of social rights, the valueattributes bound to affect value orientation of the social security rights. Theauther analyses the meaning of social right on the basis of justice by Rawlstheory that social right has the double value orientation to personal freedomand social equity. And the value orientation to social security can be frompersonal freedom and social justice both be explored. This article holds thatunder China’s current urban and rural social security system, the right to socialsecurity is the lack of individual freedom value, and there are social equitystructural defects. The essence of social security, scholars of the classicaltheory and specific practice have determined that we should bring social equityas the right to social security the first value. Specifically, forms fair shouldbecome the core values in the current macro-social security systems; real fairshould become the core values in the current basis of the social security system;legislative principles of the integration of urban and rural social security mustface the main parties of the status of inequality, and the rights and obligationsof non-full reciprocity, security standards subject to the level of developmentof productive forces and other special prerequisite, and the integration of urbanand rural social security legislation main principles: the principle of equality ofsocial security rights, the protection of the bottom line of universal principles,tilt protection principles, social cohesion and integration of the principle ofpersonal responsibility and social principles.In this paper, affecting social protection of the legal system constructionstart of factors, pointed out that the choice between the social security surplusmode and mechanism of the mode, and the establishment of model legislationhave decided the tone, direction and legislative technology of social security legal system; proposed by the World Bank and the multi-pillar system forChina’s construction of multi-level social security legal system provideinspiration. In the urban and rural integration process, we must first sort out themacro planning level social security system framework; Secondly, inaccordance with the development trend of international social security andChina’s real conditions, from the universal basic protection, regional groups ofthe urban and rural areas of convergence social insurance, personal supplementsocial security constructive three different levels of social protection of thelegal system.In the urban and rural integration process, social security legalrelationship can be divided into the basic social security legal relationship tosupplement social security and other social security legal relationship betweenthree different levels, each level is different from the nature of the legalrelationship. Subjects are the first element in social security legal relationship,it is necessary to carry out focused research. Subjects of social security law areenjoying the protection of the legal rights and obligations of individuals,organizations and state organs in social security legal relationship. The maincharacteristics of subjects of social security law are: universality andparticularity on subject of the right, the complexity of subject of a duty, publicand private property in subject of protection. Subjects of social security law canbe classed into legislation and practice. In the legal, Subjects of social securitylaw can be classed into the basic subject and the common subject; in practice,subjects of protection are diversified. The author suggests that there are issues,such as, qualitative unclear laws, obligations meaning not clear, anddeficiencies of subjects of protection in rural, through the legal status of suchanalysis about he social security agencies, community, village collective units.The author suggests that during both of the system development, or a totalof at the current situation of the system, the right to social security in thefollowing three can be in the context of the existence in a different form: first, the right to social security in the Human Rights context; Second, basic rights tosocial security in the Constitution context; Third, specific rights to socialsecurity in the common law context. The rights to social security in differentcontext have different characteristics and norms effect, this paper focuses onbasic rights to social security in the Constitution context and specific rights tosocial security in the common law context. The paper discusses that basic rightto social security is an independent constitutional right, points out that basicright system of social security posed by the right to material assistance ofcitizens, the right to retirement living and the right to protection of specialgroups entitled to special care. Because lack of effectiveness of norms in basicright to social security, basic right to social security which should be directlytranslated into the reality of the right of individual citizens can only lookforward to a concrete manifestation of the common law. However, there is alarge difference between urban and rural areas in China about specific rights tosocial security in the common law context, such as the legal sources, the scopeof rights, funding sources and regulating effect. Clearly, the social securityright system is urgently needed to reconstruct in the urban and rural integrationprocess in China. We ought to establish the principle of the equal protectionand reasonable differential treatment principle, on the basis of economicresources and social stratification two reality premise.Based on the semantic analysis of the concept of liability, social securityliability is defined as multi–meanings concept of liability, both negativeliability and positive liability. Compared to other legal departments, thecharacteristics of the social security liability are: defined the concept ofliability multi–meanings, the diversity of subjects of liability, a comprehensiveform of liability, and accountability mechanism complexity. On the reciprocalrelationship, Positive duty is a liability of the role, status liability, and thenegative liability is a liability for the protection of active duty. For active duty,the paper discusses liability-based thinking from the two perspectives of history and reality, then analyses the subjects of liability and the contents ofliability. As for negative liability, the author suggests that there are not ownindependent constitute theory for negative responsibility, we can learn fromother sectors of the negative responsibility theory, integrated criminal liability,administrative liability and civil liability and other forms of legislative normsto meet the needs of self-contained logic.To sum up, this paper systematically studied social security legal systemin the process of integration of the urban and rural referring to other subjects.On the one hand, demonstrated the right to freedom of the individual and socialequity double value orientation in the process of integration of the urban andrural social security, not only laid a jurisprudence basis, but also enrichedChina’s social security law on the basis of theory ; On the other hand, with theexisting regulations and policies based on the text in light of China’s socialsecurity practice around the legal system and legal relations, the right to socialsecurity and social security liability, the use of traditional tools of law,interpretation and evaluation of specific social security laws and regulations,this paper confirms legal system the direction of the development of urban andrural integration, and looks forward to China’s current social security ongoinglegislative activities benefit.

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CLC: > Political, legal > Legal > Chinese law > Administrative law > The Home and Social Security, Service Management Act > The Social Security Act
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