Fu Yingguang, School of Public Management

Abstract: As aging of the population in China is becoming increasingly severe in the 21stcentury, social pension service has become an important way to solve the elderly life care, nursing service, spiritual comfort, cultural entertainment and other services. Social pension service contract is a written agreement which determines the rights and obligations of the parties during pension service. Due to the particularity of the social  pension service contract, the current legal system has difficulties in regulation. In order to realize substantial fairness, it is necessary to introduce the concept of social law into the regulation of pension service contract. With the goal of regulation, on the basis of present legislation of pension service contract and practical problems, by the the oretical interpretation and case analysis, this paper develops from four aspects of regulation of pension service contract subject, regulation of rights and obligations, judgment standard of service defects and regulation of contract termination and makes a proposal of perfecting pension service contract regulation system.

The service process involved in the service contract for the aged includes the provision of national social welfare. The conditions and process of its implementation are under administrative supervision. The standardization of the service contract for the aged confirms the social rights of the aged by law. The social pension service contract in nature is matching structure of external state responsibility and internal contractual responsibility.

In China, the pension service contract normalization is in the primary stage, judges in judicial practice pursue fairness and justice through interpretation of the law, and apply the interest balance to the judgment, but this approach often leads to in consistent judgment results. The regulation of pension service contract can confirm the social rights of the elderly. Through the horizontal comparison and analysis of local laws and regulations related to the pension, this paper comes up with systematic measures to solve the problems mentioned previously in reference to the effective practices in various places. This paper has formed out of 183 cases and many visits to pension institutions. Major reasons have been listed for disputes in the pension service contract. The first problem is imperfection of the qualification regulation. The second cause of the disputesis unclear service level agreement. The third reason goes to unclear obligation of notification and assistance, which may leads to breach of contract. Fourthly, differences exist in the validity of the exemption clause. Next reason goes to unstandardized duty of care of pension institutions. Finally, the placement lacks systematic guarantee of the elderly after the termination of the pension service contract. The Social Benchmark Lawis a minimum execute formulated by the state to be followed in social activities in order to protect interests of vulnerable groups. It can restrain private rights and safe guard legitimate rights and interests of the elderly. There are differences between norms of social benchmark law and civil law. The compulsory provisions of social benchmark law delimit security line of social vulnerable groups, which can promote improvement of overall social welfare.

The qualification regulation of the subject of social pension service contract consists of two parts, one is the restriction of institution qualification and the supervision of its function , the other is the regulation of the conditions and procedures of the elderly check in public pension service institutions. In China, the legal provisions on the admission qualification of pension service institutions have changed from the permit system to the registration and filing system, which has relaxed the restrictions on the admission qualification and increased the risks in pension service institutions to a certain extent. The supervision of pension service institutions has changed from advance approval to post-operation supervision. The supervision and regulation still require pension service institutions in operation to meet certain requirements and standards. By using the method of value analysis, this paper argues that the legislation and system improvement of the comprehensive supervision system should protect interests of the elderly and value of justice. It adheres to the principle of combining strict law enforcement with tolerance and prudence, as well as the principle of "equal treatment" and "differentiated treatment". Due to the shortage of beds in public institutions for the aged, there are non-standard cases of selective occupancy. This paper summarizes the experience and defects of the policy of waiting for check-in adopted in some places, and puts forward the measures to determine the eligibility of public pension institutions.

The regulation of the rights and obligations of pension service contract is to protect rights and interests of the elderly, constrain properly the institutions, and ensure the fairness and rationality of the rights and obligations of the parties in the contract. Adding mandatory provisions in pension service contracts conforms to the requirement that country is supposed to fulfill part of pension service obligation. It is a legal way to balance the interest relationship between pension service institutions and service recipients, and it is helpful in pushing the standardized development of pension service industry.

The service level is an essential clause in the contract, which should be based on the comprehensive evaluation of the health status and behavioral ability of the elderly, and the evaluation results should be used as the deciding factors determining the nursing level, rather than the parties' arbitrary choice. It is necessary to transform the institution's obligation from assistant to cooperative. In the social pension service contract, the cooperation and collaboration is needed to minimize potential risks. It is necessary and feasible to clearly describe the obligation of cooperation by law. The cooperation obligation of the service recipient belongs to self-responsibility. Timely and complete notification can narrow the information gap between the two parties, lower risks and reduce service defects. Drawing lessons from foreign legislative experience, this paper argues that the obligation of notice varies in different stages of social pension service contract and is limited by the purpose of the contract. In addition, the scope of service receivers' obligation of notification should adopt the viewpoint of "inquiry notificationism". The principle of liability for breach of incidental obligation includes both no-fault principle and fault principle. The fault liability is applicable when the law has clear provisions. It is necessary to specify the fault liability under specific circumstances in the legal provisions of the social pension service contract. The disclaimer clause cannot be completely negated, but should be restricted by objective of the justice value of the contract.

Compared with the defects of an object, it is difficult to judge the service defects. Judging service defects is controversial in civil law theory, among which the three-tier benchmark theory has provided the judgment standard for the defects of social services such as pension institutions. Although there is no absolute standard for judging service defects in elderly service contracts, the factors have been summarized that need to be considered in judging defects. The distribution of burden of proof for service defects is important when the facts of the case cannot be determined. There are many difficulties for service recipients to provide evidence, and pension institutions have obvious advantages in providing evidence. According to the "revised norm theory", in order to solve the problem of biased evidence, law should clearly stipulate the documentary evidence that the elderly and their dependants have right to consult and obtain from the perspective of the obligation of documents.

The regulation of the termination of pension service contract means that the institution should arrange the life of the elderly in the case of the rescission or termination of the contract, and the civil affairs department should help to mediate a settlement. Based on social effects, law should stipulate service recipients' right of arbitrary termination in the performance of the contract in order to protect the interests of vulnerable groups. On the trait of long-term contract, after the obligations of the old-age service contract are fulfilled, they cannot be restored to the original state, so the rescission effect of the contract shall not be retroactive. Taking into account the theories of social law, civil law, administrative law, economic law and other legal departments comprehensively, this paper studies the legal regulation of social pension service contract.

Read the full article here:   社会养老服务合同法律规制研究.pdf