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In response to a series of social problems posed by the aging of the population, the amendment to the Law on the Protection of the Rights and Interests of Senior Citizens has been put on the agenda. On June 26, 2012, the Law on the Protection of the Rights and Interests of Senior Citizens (Revised Draft) was submitted for the first time to the NPC Standing Committee for examination and approval. The revised draft has extended from the existing law with six chapters and 50 articles to 9 chapters and 86 articles. The three newly added chapters are providing for the aged services, social privileges and livable environment. 38 new articles have been added and the original 38 articles have been modified. There are a number of highlights in the draft amendment to the Law on the Protection of the Rights and Interests of Senior Citizens: establishing the basic state policy or the national strategy to actively respond to the aging of the population; establishing senior citizens guardianship system beyond the adult guardianship system in the civil law; establishing system of family care with national support; tentatively establishing long-term care insurance apart from pension insurance and medical insurance; improving the reasonable coordination mechanisms of family care and social care; improving the social care system with family care as the major means supported by community service, agency service and volunteer service; legalization of social privileges, etc. Among these, the most commonly concerned is the provision known as “caring for senior citizens”: “family members shall care for the spiritual needs of senior citizens, and no senior citizens shall be neglected. In the case where family members live apart from senior citizens, they shall often pay visits or send greetings to senior citizens. Employers shall safeguard their right to leave for visiting relatives in accordance with the relevant regulations.”
There may be some misconceptions about the provision of “caring for senior citizens”. Many people believe that this should be regulated by ethical rules. It’s impractical for most people to go back to their hometowns to care for senior citizens, not because of their reluctance to do so, but because of the objective constraints. Besides, it’s hard to have specific measurement as to the implementation of this provision. It’s necessary to have a full understanding of this provision so as to eliminate this kind of misunderstanding. First of all, this is indeed a provision with moral characteristic. In social transformation, there is a strong morality need for we are now faced with a number of social problems, for example, people are unwilling to help senior citizens if they fall ill on the ground, those who do good deeds suffer pains both physically and spiritually, and senior citizens who have been dedicated to the society and family all their life have to live in misery and solitude. We must figure out ways to solve these problems. Ethical rules and education can’t deal with these social problems well. Therefore, we need to resort to legal measures so as to address these problems with the joint force of morality and law. Second, this is a complete provision. “Family members shall care for the spiritual needs of senior citizens, and no senior citizens shall be neglected” is the starting point and the basic requirement. In reality, senior citizens may be neglected in the way that their children stay apart from their them for a long time without paying them a visit, and some even won’t go back home for several years without a greeting. That’s why the revised draft provides that“in the case where family members live apart from senior citizens, they shall often pay visits or send greetings to senior citizens.” Some people claim that they are willing to go back home to pay their parents a visit, but it’s unrealistic in reality, which is obviously a misunderstanding of this provision.“Caring for senior citizens” requires people to go back home to visit senior citizens if possible or send greetings to them in other forms and ways, so that family relationship won’t be disturbed by the factors of space and distance. This is considerably significant for senior citizens in terms of their psychological and spiritual needs. Third, all sectors of society should supervise and support caring for senior citizens, which requires “employers shall safeguard their right to leave for visiting relatives in accordance with the relevant regulations.”The employers including enterprises should allow people to have leave for visiting senior citizens in accordance with this provision. This provision can also be regarded as the new social responsibility put on enterprises by the Law on the Protection of the Rights and Interests of Senior Citizens.
Incorporating “caring for senior citizens” into law has given rise to a lot of controversies focusing on the maneuverability of this provision. A social survey of whether to support incorporating “caring for senior citizens” into law shows that supporters account for 42.2%, while opponents account for 35.6%, and those who don’t care account for 22.2%. The main argument of the opponents is the lack of maneuverability, for they hold that this provision should be regulated by ethical rules. There are some misunderstandings about the maneuverability of this provision. In the eyes of the general public, law offers sanctions, and breaking the law will be punished. Most people think it is hard to impose sanctions on those who don’t care for senior citizens. In fact, not all legal provisions can offer sanctions. The laws such as the Law on the Protection of the Rights and Interests of Senior Citizens and the Law on the Protection of Persons with Disabilities have provisions aimed to advocate, encourage and safeguard some conducts so as to address the social problems. Another misunderstanding comes from jurists and legal professionals. Jurists tend to identify maneuverability with actionability. Actionability means legal provisions can be applied in judicial practices, which is different from maneuverability. Maneuverability has a much broader denotation, including being an important principle and base of judging truth and falsehood, administrative accountability and mediating family disputes, apart from actionability. In addition, as mentioned above, the provision of “caring for senior citizens” should be analyzed from a more comprehensive perspective. In addition to “paying visits”, “giving greetings”is encouraged as well. If it’s impossible to pay visits to senior citizens, then giving greetings should be emphasized. More significantly, this provision provides for the obligation of employers to safeguard employees’ right to leave for visiting relatives, which is actually a measure to guarantee the feasibility of this provision. In recent years, the concept of corporate social responsibility is getting increasingly popular. If safeguarding employees’ right to leave for visiting relatives is incorporated in the contents of the corporate social responsibility report, the effect of this provision will be more obvious. On the other hand, the Law on the Protection of the Rights and Interests of Senior Citizens belongs to social law, so it will prescribe provisions from encouraging and advocating perspective. Apart from the provision of “caring for senior citizens”, others policy and responsibility-oriented provisions such as “governments shall ...” and “communities shall…” can all produce the effect of clarifying governmental and social responsibilities, though lacking actionability. The value of incorporating “caring for senior citizens” into law lies in its advocating and guiding functions through law. It can be combined with the reconstruction of mainstream social values, the reconstruction of social morality and the construction of family culture to render deeply rooted the culture of filial piety and traditional values advocated by such kind of provisions, so that each family member can better understand, recognize and fulfill his or her moral and legal responsibilities.
Incorporating “caring for senior citizens” into law is mainly based on a comprehensive understanding of the needs of senior citizens. Generally speaking, senior citizens have three types of basic needs: in terms of material need, children are obliged to support the senior citizens financially; in terms of daily life, children should take care of the daily life of senior citizens; in terms of spiritual need, children should be concerned about the psychological and spiritual needs of senior citizens. Under the current circumstances, because of the perfection of the social insurance system and the subsidies pension policy implemented by the government, senior citizens need more life care and spiritual support than financial support. With the accelerated aging of the population and population mobility, two changes have taken place in social and family structures: first, the ratio between senior citizens and young people in a family is unbalanced, resulting in the “4-2-1” family structure; second, more and more senior citizens live apart from their children in different cities, creating more and more empty-nest families. Due to the restrictions in terms of distance, time and energy, it is an increasingly prominent problem to care for senior citizens in their daily life and satisfy their spiritual need. Though with the improvement of social care service system of “family care as the major means supplemented by community and organization support”, senior citizens’ daily lives can be taken care of in communities and nursing homes, their spiritual needs still need to be satisfied by family love and respect. Therefore, the unique role played by family members and children in caring for senior citizens can’t be replaced by either government or society.
Honestly speaking, incorporating “caring for senior citizens” into law is aimed to address the social issue of spiritual needs of senior citizens as a result of the aging of the population. It is also concerned about the life and health of senior citizens. Psychological and mental state of senior citizens is not an isolated issue, for it is related to body functions, indicating the health status of senior citizens and even life safety. A six-year study undertaken by the researchers at the University of California has shown that solitude is highly related to the death risk of senior citizens, 14.2% for ordinary senior citizens, while 22.8% for solitary senior citizens. In addition, the amount of daily activities of solitary senior citizens is significantly less than the other senior citizens, and it’s more difficult for solitary senior citizens to carry out daily activities. So to speak, caring for the spiritual life of senior citizens is to care for their lives and health. To take a much broader perspective, incorporating“caring for senior citizens” into law is no longer simply limited to law on senior citizens, but actually a microcosm of moral reflection in the transformation of Chinese society. In recent years, the family tragedies and social events have been constantly challenging our moral bottom line, such as taking care of senior citizens by family members and social issues concerning doing boldly what is righteous as well as people’s unwillingness to help senior citizens falling ill on the ground. To enact laws to satisfy the spiritual need of senior citizens and to protect those who do boldly what is righteous indicates the moral reflection and seeking moral way out in social transformation. An ideal society should basically rely on moral maintenance rather than legal regulation, but China’s society has not reached this level yet and is even developing in the opposite direction. In the social transformation, the gap between the moral needs of people and the social moral status quo has been widened, so it is necessary to resort to law to supplement the function of morality. “Caring for senior citizens” is surely a provision with distinctive morality feature, which is undoubtedly a strong reflection of moral decline in social transformation. In fact, it is also one of the alternatives to maintain traditional morality, which is irreplaceable. In other words, law is resorted to support morality. Now that the western welfare states are launching the campaign of “redefining family” to get rid of the plight of the welfare system, we must be cautious about the changes of family notion and function in our social transformation by retaining family tradition and family value. The value of “caring for senior citizens” lies not in its legal usefulness, but in helping every senior citizen to own a family with morality.
There may be some misconceptions about the provision of “caring for senior citizens”. Many people believe that this should be regulated by ethical rules. It’s impractical for most people to go back to their hometowns to care for senior citizens, not because of their reluctance to do so, but because of the objective constraints. Besides, it’s hard to have specific measurement as to the implementation of this provision. It’s necessary to have a full understanding of this provision so as to eliminate this kind of misunderstanding. First of all, this is indeed a provision with moral characteristic. In social transformation, there is a strong morality need for we are now faced with a number of social problems, for example, people are unwilling to help senior citizens if they fall ill on the ground, those who do good deeds suffer pains both physically and spiritually, and senior citizens who have been dedicated to the society and family all their life have to live in misery and solitude. We must figure out ways to solve these problems. Ethical rules and education can’t deal with these social problems well. Therefore, we need to resort to legal measures so as to address these problems with the joint force of morality and law. Second, this is a complete provision. “Family members shall care for the spiritual needs of senior citizens, and no senior citizens shall be neglected” is the starting point and the basic requirement. In reality, senior citizens may be neglected in the way that their children stay apart from their them for a long time without paying them a visit, and some even won’t go back home for several years without a greeting. That’s why the revised draft provides that“in the case where family members live apart from senior citizens, they shall often pay visits or send greetings to senior citizens.” Some people claim that they are willing to go back home to pay their parents a visit, but it’s unrealistic in reality, which is obviously a misunderstanding of this provision.“Caring for senior citizens” requires people to go back home to visit senior citizens if possible or send greetings to them in other forms and ways, so that family relationship won’t be disturbed by the factors of space and distance. This is considerably significant for senior citizens in terms of their psychological and spiritual needs. Third, all sectors of society should supervise and support caring for senior citizens, which requires “employers shall safeguard their right to leave for visiting relatives in accordance with the relevant regulations.”The employers including enterprises should allow people to have leave for visiting senior citizens in accordance with this provision. This provision can also be regarded as the new social responsibility put on enterprises by the Law on the Protection of the Rights and Interests of Senior Citizens.
Incorporating “caring for senior citizens” into law has given rise to a lot of controversies focusing on the maneuverability of this provision. A social survey of whether to support incorporating “caring for senior citizens” into law shows that supporters account for 42.2%, while opponents account for 35.6%, and those who don’t care account for 22.2%. The main argument of the opponents is the lack of maneuverability, for they hold that this provision should be regulated by ethical rules. There are some misunderstandings about the maneuverability of this provision. In the eyes of the general public, law offers sanctions, and breaking the law will be punished. Most people think it is hard to impose sanctions on those who don’t care for senior citizens. In fact, not all legal provisions can offer sanctions. The laws such as the Law on the Protection of the Rights and Interests of Senior Citizens and the Law on the Protection of Persons with Disabilities have provisions aimed to advocate, encourage and safeguard some conducts so as to address the social problems. Another misunderstanding comes from jurists and legal professionals. Jurists tend to identify maneuverability with actionability. Actionability means legal provisions can be applied in judicial practices, which is different from maneuverability. Maneuverability has a much broader denotation, including being an important principle and base of judging truth and falsehood, administrative accountability and mediating family disputes, apart from actionability. In addition, as mentioned above, the provision of “caring for senior citizens” should be analyzed from a more comprehensive perspective. In addition to “paying visits”, “giving greetings”is encouraged as well. If it’s impossible to pay visits to senior citizens, then giving greetings should be emphasized. More significantly, this provision provides for the obligation of employers to safeguard employees’ right to leave for visiting relatives, which is actually a measure to guarantee the feasibility of this provision. In recent years, the concept of corporate social responsibility is getting increasingly popular. If safeguarding employees’ right to leave for visiting relatives is incorporated in the contents of the corporate social responsibility report, the effect of this provision will be more obvious. On the other hand, the Law on the Protection of the Rights and Interests of Senior Citizens belongs to social law, so it will prescribe provisions from encouraging and advocating perspective. Apart from the provision of “caring for senior citizens”, others policy and responsibility-oriented provisions such as “governments shall ...” and “communities shall…” can all produce the effect of clarifying governmental and social responsibilities, though lacking actionability. The value of incorporating “caring for senior citizens” into law lies in its advocating and guiding functions through law. It can be combined with the reconstruction of mainstream social values, the reconstruction of social morality and the construction of family culture to render deeply rooted the culture of filial piety and traditional values advocated by such kind of provisions, so that each family member can better understand, recognize and fulfill his or her moral and legal responsibilities.
Incorporating “caring for senior citizens” into law is mainly based on a comprehensive understanding of the needs of senior citizens. Generally speaking, senior citizens have three types of basic needs: in terms of material need, children are obliged to support the senior citizens financially; in terms of daily life, children should take care of the daily life of senior citizens; in terms of spiritual need, children should be concerned about the psychological and spiritual needs of senior citizens. Under the current circumstances, because of the perfection of the social insurance system and the subsidies pension policy implemented by the government, senior citizens need more life care and spiritual support than financial support. With the accelerated aging of the population and population mobility, two changes have taken place in social and family structures: first, the ratio between senior citizens and young people in a family is unbalanced, resulting in the “4-2-1” family structure; second, more and more senior citizens live apart from their children in different cities, creating more and more empty-nest families. Due to the restrictions in terms of distance, time and energy, it is an increasingly prominent problem to care for senior citizens in their daily life and satisfy their spiritual need. Though with the improvement of social care service system of “family care as the major means supplemented by community and organization support”, senior citizens’ daily lives can be taken care of in communities and nursing homes, their spiritual needs still need to be satisfied by family love and respect. Therefore, the unique role played by family members and children in caring for senior citizens can’t be replaced by either government or society.
Honestly speaking, incorporating “caring for senior citizens” into law is aimed to address the social issue of spiritual needs of senior citizens as a result of the aging of the population. It is also concerned about the life and health of senior citizens. Psychological and mental state of senior citizens is not an isolated issue, for it is related to body functions, indicating the health status of senior citizens and even life safety. A six-year study undertaken by the researchers at the University of California has shown that solitude is highly related to the death risk of senior citizens, 14.2% for ordinary senior citizens, while 22.8% for solitary senior citizens. In addition, the amount of daily activities of solitary senior citizens is significantly less than the other senior citizens, and it’s more difficult for solitary senior citizens to carry out daily activities. So to speak, caring for the spiritual life of senior citizens is to care for their lives and health. To take a much broader perspective, incorporating“caring for senior citizens” into law is no longer simply limited to law on senior citizens, but actually a microcosm of moral reflection in the transformation of Chinese society. In recent years, the family tragedies and social events have been constantly challenging our moral bottom line, such as taking care of senior citizens by family members and social issues concerning doing boldly what is righteous as well as people’s unwillingness to help senior citizens falling ill on the ground. To enact laws to satisfy the spiritual need of senior citizens and to protect those who do boldly what is righteous indicates the moral reflection and seeking moral way out in social transformation. An ideal society should basically rely on moral maintenance rather than legal regulation, but China’s society has not reached this level yet and is even developing in the opposite direction. In the social transformation, the gap between the moral needs of people and the social moral status quo has been widened, so it is necessary to resort to law to supplement the function of morality. “Caring for senior citizens” is surely a provision with distinctive morality feature, which is undoubtedly a strong reflection of moral decline in social transformation. In fact, it is also one of the alternatives to maintain traditional morality, which is irreplaceable. In other words, law is resorted to support morality. Now that the western welfare states are launching the campaign of “redefining family” to get rid of the plight of the welfare system, we must be cautious about the changes of family notion and function in our social transformation by retaining family tradition and family value. The value of “caring for senior citizens” lies not in its legal usefulness, but in helping every senior citizen to own a family with morality.