Research On Contractual Governance Of Government’s Purchase Of Elderly Care Services

The Chinese government,in its early stages,astutely foresaw the impending aging crisis and strategically planned for the elderly care system by implementing a series of policies.To improve the governance of the aging society,the government promoted government-purchased elderly care services to make up for the inadequacies in the market and government’s elderly care service supply.At the same time,the government established and improved elderly care service standards,laying a solid foundation for the development of the elderly care service system in China.As a new method for providing public services,government-purchased services have been applied in various fields in China in different ways.Although purchasing elderly care services as a novel means for the government to fulfill its welfare responsibilities has been widely used in China,there are still a series of issues in its development that urgently need legal regulation and prevention to cope with foreseeable risks in the future.This article takes the legal risks in existing government-purchased elderly care service contracts as an entry point,sorts out the higher-level concepts and legal foundations of government-purchased services,analyzes the current service purchase contracts and policies,and identifies the problems in China’s existing purchase of elderly care services.By conducting an in-depth analysis of the government’s role in purchasing services,the article identifies the problems and proposes feasible solutions by repositioning the government’s role in purchasing.The main body of the article consists of five parts:Part One: Basic concepts and theories.Clarifying the concepts of government purchasing of public services helps to trace the essence of real-world legal issues and sort them out logically from top to bottom,selecting the theoretical framework to solve practical problems and laying a firm logical foundation for addressing the confusion in practice.Part Two: Normative analysis of existing elderly care service purchases.By selecting publicly available government contracts for elderly care services,conducting normative empirical analysis,and identifying legal issues through text analysis,the article analyzes the causes of these issues.It also summarizes and reviews the central and local government policies for purchasing elderly care services,identifying problems in the policies.Furthermore,it explores the primary form of "publicly-funded private operation" in existing elderly care service purchases and analyzes the risks and hidden dangers.Part Three: Analysis of the causes of risks in government-purchased elderly care services.The government plays the dual roles of "referee" and "athlete," leading to conflicts between these roles.The main reasons are: firstly,conflicts in rule-making between the government as purchaser and regulator,strong administrative intervention in the legal relationship of purchasing elderly care services,resulting in an imbalance of rights and obligations in the purchase of elderly care contracts.Secondly,the lack of systematic legislation leads to arbitrary administrative power,as the legislation for government purchase of elderly care services and its higher-level legislation is not yet perfect,with many legal gaps.Consequently,administrative power dominates the blank fields,leading to an overall structural imbalance.Thirdly,the choice of judicial adjudication for government-purchased elderly care service contracts in China poses risks,making judicial relief channels unclear.Finally,the "government failure" caused by the absence of social organizations,as the government overly controls profit and non-profit organizations in service purchases,makes it difficult for third-party organizations to continue or function normally.Part Four: The improvement path for government procurement of elderly care services-contractual governance.Firstly,the effectiveness of contractual governance is discussed,which is an essential element of public-private partnership.Contractual governance can address the "dual role" issue of the government in purchasing elderly care services.Secondly,the feasibility of contractual governance is analyzed based on the reference to foreign legal systems,examining Germany’s two-stage theory,France’s divisible actions,and Japan’s management model,concluding that the "two-stage theory" is the main reference for the existing legal structure in our country.The necessity of contractual governance for the current construction of the rule of law is also demonstrated.Part Five: Shaping the system of contractual governance for government procurement of elderly care services.First,clarify the reasonable boundaries and roles of government purchasers,managers,and supervisors,specifying their respective responsibilities and scopes.Second,using the "two-stage theory" as the framework,deconstruct and reconstruct the legal structure of government procurement of elderly care services in our country,separating it into three stages and redefining its meaning.Third,clarify the behavior patterns of the government in each role.In the manager’s actions,the government should appropriately change its functions from high-power administration to service-oriented behavior;introduce competitive dialogue mechanisms to ensure the effectiveness of purchased services;supervisors should clarify their supervision methods and explicitly state them in the contract.Finally,the contents of the contract should be specified.The contract should consider the participation of the intended service recipients,clarifying their legal status in the contract;the government should retain certain public power intervention measures to ensure the normal operation of the overall elderly care service mechanism;independent third-party supervision should be included in the supervision to ensure the rationality of supervision methods;the government has the ultimate responsibility to take over,ensuring relief measures in case of procurement failure.