Research On The Social Security Legislation For Loss Of One-Child Families In China

Loss of one-child family refer to the family that one-child has died due to subjective and objective factors since the implementation of the family planning policy,the parents no longer have children or adopted children,and has exceeded the natural gestation age.After the incident of "losing the only child",the economic cost and emotional cost that the one-child family originally invested in the child have all sunk,facing the double blow of material and spirit,and the permanent absence of old-age care and daily care.According to the theory of risk society,in the past 40 years since the implementation of the family planning policy,the number of the families that one-child has died has been huge,and is increasing every year,but the social security legislation of the families is still in its infancy.At present,The social security system for family who have lost the only child is mainly reflected in article 27 of the Population and Family Planning Law,the National pilot Programme for the support system of families with one Child disabled or dead(2007),on further doing a good job in the support of planning families with special difficulties(2013)and other normative documents,formulated by the relevant ministries of the State.There are the following shortcomings: insufficient legislation,low level of legislation,low compensation standards,regional differences,unreasonable payment time,old-age security and psychological,medical,judicial and other special assistance system is not perfect.In addition,the lack of governance ability of charitable organizations themselves,the weak willingness to participate in the social security of loss of one-child families and the need to further optimize the relevant legal and policy environment lead to the failure of charitable organizations to play a full role in the protection of loss of one-child families.The academic circles do not pay much attention to the social security problem of the families.Most of the existing literature simple comments on the plight and related measures of the families,but there is no literature to put forward the social security system model of the families.From the perspective ofsocial law,the author makes an in-depth and systematic exploration of the social security of loss of one-child families,and puts forward the concrete idea of perfecting the social security system of the families under the construction of the model,which is also an academic attempt in itself.In order to obtain first-hand information,accurately grasp the living status of the families and the need to protect their rights,the author spent nearly a year to send an electronic link to the "questionnaire on the Social Security system of loss of one-child families".The electronic link was sent to tens of thousands of the families members targetedly in 68 QQ groups,one by one.Through the time used to answer the questionnaire,the IP address comparison of the mobile phone or computer used to submit the questionnaire,and the automatic filtering of invalid answers by the questionnaire star software system,It ensures that the questionnaire collected can truly represent the living conditions of loss of one-child families,the demand for social security rights and the willingness to choose the social security model,and so on.As of December 30,2017,a total of 589 valid questionnaires have been received from all over the country,which provides data support and empirical basis for the analysis of the demand for the right to social security and the investigation of the current related social security system.Although the family planning policy does not directly lead to "the one-child dead",but because the family planning policy in the form of legal restrictions on family autonomy,the uniqueness of the only child and risk factors intertwined led to the emergence of loss of one-child family.The author believes that simply characterizing the social security responsibility of the families as social assistance does not reflect the special sacrifice because of the restrictions on reproductive rights caused by the family planning policy.Therefore,the concept of social compensation under the category of social law in Germany and Taiwan is introduced.Social compensation refers to the compensation given by the state and society when members of society suffer damage based on irresistible risks such as naturalness,sociality or policy,as well as the social members bear the obligation of society.The author believes that the social security responsibility of the loss of one-child families has the comprehensive attributes of social assistance and social compensation in nature.On the basis of defining the nature of the social security responsibility of the loss of one-child families,this paper analyzes theright elements of the social security right from the aspects of the subject,the obligation and the contents of the social security right.The contents of rights include the right to social compensation and the right to social assistance.Starting from the theory of social law,the author applies and puts forward the theory of social vulnerable groups,the theory of precise assistance from the perspective of four dimensions and the theory of special sacrifice from the perspective of social compensation.It lays a theoretical foundation for the model construction and specific system setting of the social security system of the loss of one-child families.Based on the theory of social vulnerable groups,this paper explains the manifestations of social weakness,such as the incomplete family structure,the existence of mental health problems,the damage to economic interests,the elderly lack of dependence on,and so on.Furthermore,it is put forward that the social security of the loss of one-child families is in line with the value of justice,the value of equality and the value of compensation of interests.From the precision of the assistance object,the precision of the assistance content,the precision of the assistance level and the "precise docking" with the charity organization,this paper puts forward the precision assistance theory.Because the social security of the loss of one-child families is related to the family planning policy in the specific historical period of our country,the time factor plays an important role in the identification of the social security object of the families.According to Einstein’s theory of relativity,adding the dimension of time to the three-dimensional space as we know,it constitutes the "four-dimensional".Therefore,the precise assistance theory from the four-dimensional perspective is put forward.According to the theory of special sacrifice,in order to achieve the purpose of social public welfare,the state will exercise the power of public law to restrict or damage the rights of individual citizens,because the behavior of public power of the state is based on the interests of society as a whole.Citizens have an obligation to tolerate a certain limit of restriction or damage to their rights,but the resulting sacrifices must be fair and,if exceeded,should be compensated.For the sustainable development of the whole society,the loss of one-child families has given up the will to have multiple children,so that the choice of the number of births from the private domain of self-determination into the social obligation of citizens.Social compensation is based on the concept of fairness and justice to compensate the membersof society who cause damage for specific reasons.It does not require a causal relationship between the legitimate administrative act of the administrative subject and the result of the damage.As long as citizens bear the adverse consequences for the overall interests of society,they should be compensated,which is reflected in the nature of social security.Based on this,the author constructs the normative model of the social security system of the loss of one-child family from three aspects: the comprehensive model of the content,the moderate level model and the legal model of the social security system.The reason for choosing the comprehensive model of the content of the social security system is based on the diversification of the demand for the social security rights of the families obtained from the questionnaire survey,and puts forward the comprehensive model of the content of the social security system of the families from the perspective of accurate assistance.The moderate level model is based on the level of economic development in China and the relationship between the loss of one-child families and the family planning policy.The legal model takes into account the special legislative background of the social security of the loss of one-child families and the policy model after 10 years of practical exploration and improvement has the stability,overall situation and maturity of the policy legalization.Under the guidance of the normative model of the social security system of the loss of one-child families,this paper puts forward some legislative suggestions for perfecting the social security system of the families: First,make clear the principles of the social security of the families,It is proposed that the legislative level of the social security of the families should be set at the level of administrative laws.Second is to improve the social compensation system of the families,clarify the social compensation standard,the source of funds,the payment procedure and the management organs.Third,in perfecting the old-age security system for the families,according to their own circumstances and wishes,to live in centralized mutual aid institutions for the aged in which they help each other and independently manage and operate,or choose home community old-age services.In this part,it also analyzes the experience of socialized care model in representative countries and regions,in order to provide reference and enlightenment for the socialized care model of the families in our country.The fourth is to improve thespecial assistance system for the families,including psychological assistance,medical assistance and judicial assistance system.Fifth,we should improve the promotion system for charitable organizations to participate in the social security of the families,propose to reform the registration management system,lower the threshold for admission,strengthen internal construction,enhance governance capacity,and take a variety of measures to encourage charitable organizations to carry out social security projects for the families.