Judicial Protection and Restorative Justice of the Support Rights and Interests for the Elderly Rights
— Taking the Sample of Judgement Documents from 2013-2018 as Analysis Object
— Taking the Sample of Judgement Documents from 2013-2018 as Analysis Object
ZHAO Shukun * & YiN Yuan **
Abstract: The support rights and interests of the elderly is one of the core issues of an aging society. Judging from the judgment documents on support dispute cases in recent years, maintenance disputes mainly occur in the kinship structure of parents and children, the support obligators are mainly men, the content of support is mainly material appeals. in the judicial process, there are some characteristics worth studying, such as lawyers’ intervention, judges’ thinking, reasoning and expression. in view of this, the current development direction of the judicial protection of elderly’s rights and interests in China should be carried out around the goal of “restorative justice” and efforts should be made, such concept renewal, system improvement and spiritual support prospect.
Keywords: the elderly · support rights and interests · restorative justice
I. Introduction
A natural process of economic and technological development, population aging exerts a fundamental and overall influence on a human society, and the problem of supporting the elderly has become a common problem facing human societies world- wide. China has the largest elderly population in the world. According to the Statistical Communiqué of the people’s Republic of China on the 2017 National Economic and Social Development released by the National Bureau of Statistics of China, China had a total population of 1.39 billion at the end of 2017, of which 240.9 million were aged 60 and over, accounting for 17.3 percent of the population, and 158.31 million were aged 65 years and over, accounting for 11.4 percent. According to a United Nations forecast, China’s elderly population aged 65 and over will reach 167 million by 2020, accounting for 24 percent of the global 698 million elderly population over 65. 1 The world’s rapid aging has attracted the growing attention of the international community. A series of initiatives and actions aiming to protect the rights of the elderly have been extensively implemented, with the United Nations at the core. 2 In 1982, the First World Assembly on Aging in Vienna approved the international plan of Action on Aging, which proposed actions to protect the employment and income of the elderly, health and nutrition, housing, education, social welfare, etc. In 1991, the UN General Assembly adopted the united Nations principles for Older persons, which established five universal criteria for the status of the elderly: independence, participation, care, self-fulfillment and dignity. In the International Conference on Aging convened by the UN in 1992, the proclamation on Aging was passed, which pointed out the direction for further implementation of the international plan of Action on Aging, and declared the year of 1999 as the International Year of Older Persons. In 2002, the Second World Assembly on Aging requested the member States to be committed to actions in three priority areas: older persons and development; advancing health and well-being into old age; and ensuring enabling and supportive environments. In 2012, the United Nations Population Fund held the conference on population aging in Tokyo, Japan, calling on governments to establish safety nets for the elderly, eliminate discrimination and give full play to elderly human resources. In 2017, the UN convened the Eighth Working Session of the Open-ended Working Group on Aging, emphasizing that structural discrimination and prejudice may lead to social exclusion of the elderly.
In view of the development trend of the international community to safeguard the rights and interests of the elderly, the Chinese government has continuously taken measures to tackle the problem of population aging through the construction and improvement of the legal system, so as to offer powerful judicial relief approaches to fully protect the rights and interests of the elderly. Currently, the protection of the rights and interests of the elderly are mainly stipulated in the Law on the protection of the Rights and interests of the Elderly. Besides, the Constitution, the Marriage Law, the Law of Succession, the Criminal Law, the Social insurance Law, the Anti-Domestic Violence Law and other laws also involve some provisions about the support rights and interests of the elderly. After its revision in 2012, the Law on the protection of the Rights and interests of the Elderly has better met the needs of the elderly in current social and economic development situation. Section 2 of the law involves the elderly’s rights as dependents. The main changes in the revision were as follows: First, the function of family support for the elderly was redefined, and the previous provision that “the support for the elderly mainly relies on the family” has been amended to “the support for the elderly is based on households” (Article 13). Second, the due medical and care obligations of the prospective care providers were further clarified in instances of illness and disability of the elderly, so as to ensure the rights of the elderly to be supported in difficulties (Article 15). Third, the provisions on spiritual consolation have been added in response to the increasing demand of the elderly for the spiritual support in reality (Article 18). Fourth, the provisions on the supervision and urge of relevant organizations on the care providers who do not perform their support obligations were added, so as to urge the prospective care providers actively fulfill their support obligations (Article 24). Fifth, the provisions on the prohibition of domestic violence against the elderly were added (Article 25). Sixth, a guardianship system for the elderly was established to protect the personal and property rights of the physically or mentally disabled elderly (Article 26). Seventh, the revised law stipulates that the State shall establish and improve the family support policies for the elderly (Article 27). In addition, the revised law also protects the property rights and interests of the elderly, such as housing and land, from infringement (Articles 16 and 17) and the freedom of marriage and property disposal of the elderly from interference (Articles 21 and 22), thus further strengthening the protection of the legitimate rights and interests of the elderly and further improving the relevant support provisions (Article 20).
In general, the support rights and interests of the elderly can be separated into two domains: material and spiritual. Material support refers to the basic material living standards provided the elderly by their care providers. The most obvious manifestation of aging lies in the deterioration of their material self-satisfaction. 3 Therefore, the care providers should provide certain material support to ensure that the elderly can maintain the basic local living standards and maintain their own health, including but not limited to, the needs of the elderly for basic requirements such as accommodation, food, exercise, sleep and security so that the elderly will not be plagued by the problem of material shortage. Moreover, the right of the elderly to spiritual support should not be ignored. Family members should pay attention to the spiritual needs of the elderly, regularly communicate with them, share their inner feelings, help them resist loneliness and anxiety, and improve the quality of their spiritual life. Spiritual support may serve as guidance for the elderly to maintain a high-spirited and positive psychological state and effectively improve the life happiness index of the elderly by satisfying the inner expectations and needs of the elderly. Such a function cannot be replaced by material support. Apart from the support of family members to the spiritual needs of the elderly, spiritual support also includes the spiritual and cultural development of society. 4 Apart from the communication with their family members, the elderly also need spiritual communication in social activities, since they still need to play a social role as members of the community.
“The life of the law has not been logic. It has been experience.” According to the Law on protection of Rights and interests of the Elderly, the rights of the elderly can only be realized through specific legal practices. Therefore, it is necessary to make a more objective description and understanding of the protection of the rights of the elderly. This serves as the prerequisite for the implementation, amendment and improvement of the institutional norms concerning the rights of the elderly, and the primary prerequisite for achieving the judicial protection of the rights and interests of the elderly. How are the legal norms concerning protection of the support rights and interests of the elderly implemented? In particular, how is the real protection of the support rights and interests of the elderly realized through application of the law in support dispute cases? This paper analyzes the judicial judgment documents of the disputes over the support rights and interests of the elderly from 2013 to 2018, and attempts to analyze and explain the problems based on the findings, aiming to provide some useful reference to improve the legal protection of the rights and interests of the elderly.
II. The Current Judicial Guarantee of the Support Rights and Interests of the Elderly
A. Data source and sample selection
The author of this paper carried out a high-level search of the judicial documents database of China Judgments Online, so as to better grasp the current situation of the judicial protection of the elderly’s right to be supported after the Law on protection of Rights and interests of the Elderly was revised in 2013. In the advanced search, the author selected “cause of action: support disputes (including disputes on support payment and changes of support relations)” in the civil causes of action, “first instance” in the judicial procedure, “judgment documents” in the document type, and “2013.01 – 2018.11” in the retrieval period column. The retrieved results show 26,266 judgment documents in support dispute cases, 5 as shown in Table 1.
The data collected from China Judgments Online includes three types of judgment documents: judgment documents, verdicts and mediation agreements. The reason for selecting the judgment documents as the analysis object were as follows: First, the volume of judgment documents is the largest, the whole judicial procedure process is the most complete, the information contained is the most abundant, and the judgment documents mainly involve substantive rights. Second, the verdicts mainly focus on procedural issues, and the verdicts made are usually about granting the withdrawal of lawsuits, so they lack a comprehensive description of the entire judicial process and the final results. Third, the number of mediation documents is too small to form a certain quantity, which can be used as a supplementary case in the follow-up analysis..
The sample data from 2013 to 2018 show the the distribution of the support disputes in all provinces across China (as shown in Figure 1). The province with the most support disputes during the search period was Henan province, involving 2,350 cases, followed by Hebei province with 2,253 cases, with Hainan province and the Tibet autonomous region having the lowest number of case, 7 and 2 respectively (See Figure 1). In addition, the overall trend of the number of judgment documents in all provinces from 2013 to 2018 shows a fluctuating rise (See Figure 2). Due to the large volume of the documents selected from the first sampling, stratified sampling was carried out afterwards based on the length of the paper. First, the sampled data were set as 500 judgments. The total number of judgment documents with “support disputes” as the cause of action in the past six years was 26,266 (N), which were divided into six different sub-populations (2013=a, 2014=b, 2015=c, 2016=d, 2017=e, 2018=f) based on the years. In the sub-populations, samples were drawn from each layer based on the ratio of 500/N (500÷N), then the sample documents needed for each year were obtained (See Table 2).
Based on the 500 sample documents collected from the second sampling, the author analyzed four issues around the trial process: the initiation of judicial proceedings, the participation in the judicial process, judicial adjudication rules and the results of judicial decisions. Through the presentation and analysis of the aforementioned problems, the author aimed to determine the judicial protection of the elderly’s right to be supported.
B. The current situation and analysis of judicial guarantee of the support rights and interests of the elderly
1. Support disputes embodied in lawsuits
In terms of the plaintiffs in the samples, the initiators of the support disputes (plaintiffs of the litigations) were mainly the elderly, 6 and the subjects of rights in the support disputes were mainly confined to the kinship structure and social relationship of parents and children. In general, the cases involving the parent-child relationship accounted for about 95 percent of the cases, the cases involving the relationship between step-parents and children accounted for about 3 percent, cases involving the relationship between foster parents and children accounted for about 1 percent, and cases involving the relationship of siblings account for about 1 percent. In addition, 1 case involved the problems in the support relationship agreed between uncles and nephews. (See Figure 3)
In terms of the geographical distribution of the samples, 357 cases were filed by elderly litigants in rural areas, accounting for 71.4 percent, while 143 cases were filed by elderly litigants in urban areas, accounting for 28.6 percent. Among the samples, 11 samples involve single-child families, accounting for 2.2 percent, while 489 cases involved multiple-child families, accounting for 97.8 percent. In addition, Han families accounted for 98 percent, while families of other ethnic groups accounted for 2 percent. 7 In summary, the cases in rural areas are far more than those in urban areas, the support disputes in multi-child families are far more than those in single-child families, and the cases involving Han families are far more numerous than those of the ethnic minority families. (See Figure 4)
In terms of the litigation requests in the samples, the material demands are still of great importance in the rights and interests of the elderly. In the samples, about 96 percent of the claims filed by the elderly involve material support, including but not limited to support payment, medical expenses, nursing fees, and funeral expenses, as well as requiring the daily care by their children, access to suitable housing, and dwelling in nursing homes or similar institutions. Comparatively, the cases involving spiritual support accounted for about 4 percent. The cases involving the direct claims of spiritual support by the elderly and directly sentenced by the courts accounted for 2 percent, while the cases involving spiritual support in the argumentation accounted for about 2 percent. See Figure 5. Besides, the major means of spiritual support in the judgments are regular visits or greetings.
2. The subjects of duty on suspicion of infringing the rights and interests of the elderly
Support disputes should be settled through a judicial approach premised on clearly defined rights and responsibilities and the compulsory fulfillment of the obligations by the care providers enforced through judicial adjudications. The focus of support disputes mainly lies in the following questions: Who shall be obliged to offer support? What kind of support obligations shall be borne? Such kind of questions are the most
prominent for multi-child families. In the sample cases, 8 the defendants were mainly the children of the elderly, including 470 biological children, 13 stepchildren, and five adopted children, while one case involved an agreed support relationship, as shown in Figure 6. As a result, in the cases involving the legal relationship between parents and children, children shall naturally become the legal care providers and should fulfill their obligations in this respect in accordance with the law. The agreed support relationship among the sample cases involved the agreed support between uncles and nephews, and the controversy was the dissolution of the support relationship.
From a gender perspective, 9 the defendants were male in 448 of the sample cases, indicating that men are still the main undertakers of the obligation to care for the elderly, while only 49 of the sample cases involved women as the main duty bearers, indicating that women are not the main undertakers of the obligation, as shown in Figure 7. As a result, the main status of men as the bearers of the support obligation remains and some social customs are still very influential. Comparatively, the femal duty-bearers have been increasing in number, reflecting to some extent the transformation of women’s family roles from irrelevant people or auxiliary people to care providers.
3. Overall analysis of the judicial adjudication
To begin with, the process of litigation does not involve professional legal service providers. As shown in Figure 8, for 45 percent of elderly support cases, the elderly appeared in the courts, or their relatives appeared in courts as legal representatives or entrusted agents, while lawyers or legal workers were not fully involved in the cases.
What’s more, from the perspective of the adjudication rules, the litigation process involves multiple norms, such as legal rules, social habits, and morality. According to the samples, judges normally analyze and argue in accordance with the Civil procedure Law, Some provisions of the Supreme people’s Court on Evidence in Civil procedures, the Law on the protection of the Rights and interests of the Elderly, the Marriage Law and other laws, as well as the the legal principles and rules in judicial interpretations, so as to assess the behaviors of the parties concerned, carefully exclude other interference factors and draw convincing conclusions. Meanwhile, judges often refer to the local social conventions, customs and the local actual economic development in their statements based on the emotional needs of the parties concerned, so as to achieve the common agreement of the judgment results among the parties concerned within the limits of discretion. To illustrate this, Table 3 selects 10 typical documents.
Finally, the judgment logic differs with judicial practice. The judicial practice may not perfectly match ith judicial logic, so there will be a gap between the actual situation considered by the judges and the legal provisions. According to the samples, the criteria for court adjudication on support generally include: local economic level, actual needs of the dependents and the economic strength of the care providers. The samples involving the comprehensive consideration of the aforementioned factors account for 71 percent. In addition, household registration still exerts great influence on the calculation of alimony. 6 percent of the samples involve urban households, while 23 percent of the samples involve rural households. See Figure 9.
Meanwhile, during the adjudication process, the judges may “provide different judgments for similar cases” and have differences in legal interpretation. In the samples, there are such kinds of cases: the general public may recognize that if parents fail to fulfill their upbringing obligations when their children are under age, the adult children may not fulfill their support obligations when their parents are old. However, the judges’ judgments are mostly different, and even conflicting. Some judges believe that the adult children shall bear the responsibility, while other judges think otherwise. Besides, there are differences in household registration recognition, even if the elderly belong to rural household registration or live in rural areas, the judge will attempt to adopt a higher urban standard in the judgments if the support ability of the care providers reaches the urban standard. See Table 4.
4. Analysis of the judicial judgments
As the most important link for each party concerned, the judicial judgment also serves as an important examination for the effectiveness of judicial remedies. Both the plaintiffs and the defendants are mainly concerned about whether their claims or defenses will be supported by the courts. In the sample cases, about 75 percent of the judgments supported the claims of the plaintiffs, while the fully supported claims account for about 22 percent, and the rejected claims account for about 3 percent, as shown in Figure 10. It shows that the legal rights and interests of the elderly are highly likely to be under judicial protection.
However, spiritual support rarely appears directly in judgments. Samples show that the courts still give priority to material support claims, 10 and spiritual support does not occur frequently. It indicates the difficulty of quantifying spiritual support and judicial power being cautious about interfering with emotional bonds within the family. In the samples, 20 documents involve spiritual support, 12 documents directly involve spiritual support in the judgments, and 8 documents involve spiritual support in the argumentation, as shown in Figure 11. In general, spiritual support has not become the main issue of support disputes in both the claims of the plaintiffs and the judgment documents. In addition, the courts usually quantifying spiritual support by “the frequency of visits per year or per month” in the judgments.
III. Enlightenment from the Judicial Protection of the Support Rights and Interests of the Elderly
There is no doubt that the judicial process shall be a process of achieving justice. However, views on justice vary with different people. It is one of the basic goals of justice and the general manifestation of judicial justice to achieve the recovery and relief of the infringed interests through the judicial process for the disputes over the elderly’s support rights and interests. However, in elderly care disputes, the goal of justice obviously shall go beyond this. One of the interesting findings from the sam-
ple is that in the “reasoning and argumentation” part of the cases, expressions such as “ensuring comfortable twilight years based on the local economy, living conditions and customs”, “bringing harmony in family relationships”, “pursuing rationality”, “strengthening communication” and “traditional virtues” of judges frequently occur. Such expressions indicate that the judges sought for the support in multiple aspects in the broader social norm system during argumentation and judgment, rather than relying solely on legal rules. The judicial process does not simply require “handling affairs in accordance with the law”. Actually, it is concerned more with how to restore and repair damaged family relations and restore family values, i.e. the judicial goal of restorative justice 11 referred to herein.
A. Restorative justice and decline and restructuring of filial piety
According to the above analysis, the elderly have a high rate of winning in disputes over their support rights and interests. In other words, such disputes are usually caused by the support obligors’ directly or indirectly failing to perform the statutory support obligation, thus forcing the elderly to file a lawsuit. As a result, the plaintiffs have no other choice but to have a “legal confrontation” as their last resort, since the survival crisis of the dependents takes precedence over the breakdown of the family relationship. It shows that the traditional filial piety is gradually fading away. In the traditional Chinese agricultural civilization, “filial piety” served as the core of family construction, and “the support for the elderly” was a deep-rooted etiquette norm in such cultural development as advocating filial piety and promoting filial sons and grandsons. In traditional Chinese society, such kind of conscientious filial piety played an irreplaceable role in the settlement of disputes. In the transmission of intergenerational relations, filial piety was internalized into the spiritual world of each generation and has been continuously strengthened in intergenerational education. 12 The initial filial piety mainly depends on conscience and self-discipline, while the external forces play a minor role. As a result, “supporting the elderly” largely depends on self-discipline. Some scholars define the traditional family pension model as “ethical family pension model” and the pension model is maintained by family affection and morality. 13
However, the modernization process has exerted multiple impacts on traditional social concepts. Especially with the development of market economy, the traditional filial piety concept have been fragile and declining under the impact of modern civilization. As a result, the regulation of the relationship between parents and children depends on the external institutional norms, instead of people’s inner moral consciousness. For the support obligors, the concept that “I have to support the elderly” may gradually replace the original idea that “I shall support the elderly” based on moral consciousness. Such kind of change reflects the transformation from conscious “self-discipline” to passive external “heteronomy”. Even under the the logic of rule of law, the obligees can receive the complete protection of rights and interests only if they are equipped with better consciousness of their rights and the rights protection available to them. However, during the social transformation, the awareness of rights has not been well rooted in Chinese society. Traditional concepts, such as “anti-litigation”, “domestic shame should not be made public”, continue to affect the choice of the elderly. In the current main support mode — family support for the elderly, the elderly always chose tolerance first when their legal rights and interests are under illegal violation. due to the aforementioned factors. Once it is beyond endurance, they will claim for support from their sons. In their mind, it is a natural thing for a son to support the parents, and only if they do not have any son, will they consider claiming support from a daughter. The reason for this is that in the traditional patriarchal family system, daughters wee not entitled to inherit property, and correspondingly they did not assume the obligation to support parents. 14 Therefore, in support disputes, the support obligors are mainly men. Moreover, the elderly seldom consider the support obligation of the adopted children and stepchildren.
In general, since the implementation of the first five-year plan for law popularization in 1986, citizens’ awareness of the law and their legal rights has improved greatly, but it lags far behind the requirements of the modern rule of law. Especially in rural areas, both the dependents and the support obligors have a low educational level, legal concepts and consciousness of rights. Many children may refuse to fulfill their support obligations due to the unfair distribution of parents’ property among the children. What’s more, they regard their parents as “burdens” in life. To get rid of this heavy “burden”, they move out of the local village in the name of migrant work and turn a blind eye to their parents, completely ignoring the legal obligations and the love and care they received from childhood. In other words, even if judicial remedies are sought, the plaintiffs have many deficiencies in such aspects as consciousness of rights, ability and psychology. They do not have any supportive system in culture, psychology and system, thus hindering the protection of rights and interests.
Therefore, it is impossible to ignore such kind of potential breakdown of family relationship and the possible further fall of filial piety, or to ignore the transformation from self-discipline to heteronomy, or even to attempt and accomplish nothing during the settlement of such kinds of disputes. Settling the support issue of an aging society based on the logic of rights and obligations is undoubtedly short-sighted and even ineffective. Judicial relief for the elderly’s support rights and interests is a link in the grand social problem of support for the elderly, also known as the last link. It is for this reason that the development of a socialist moral civilization, the revival of filial piety and the promotion of a new mode of parent-child relationship are necessary. Without morality, the law is just like water without a source. The lack of restorative justice may cause a deviation from the core goal of legal justice.
B. Realization of restorative justice and completion of guarantee of rights system
The consciousness of rights and the ability to safeguard rights should be improved and promoted in the implementation of the law. The judicial process is a process of gathering applicable systems, requiring three dimensional and pluralistic applicable systems and operable and supportive measures, so as to finally achieve judicial justice.
First of all, the judicial mediation system shall be completed to give full play to the role of pre-litigation mediation in case settlement. Mediation system serves as an important form of institutional support for restorative justice. The features of support disputes lie in the special relationship of litigants, the urgency of the lawsuits, and the profound emotional factors involved in the disputes, etc. As a result, during the serious “settlement of lawsuits”, the following embarrassing result may arise: winning the lawsuit but losing the emotional tie. The long-time emotional estrangement of the parties may damage the formulation of family intergenerational relations and finally lead to the impossibility of realizing the rights of the dependents. Through judicial conciliation, the social and civil forces may be fully mobilized to solve support disputes, find a breakthrough in the settlement of disputes from the subtle aspects of kinship relations, and fully mobilize the special values of township regulations, social customs, and moral concepts in dispute resolution. This is conducive to the creation of such a good situation: “Folk laws shall be applied to ensure the strict observation of national laws” 15 , so as to actually protect the rights of the dependents.
Second, the legal aid system shall be improved, so as to provide better legal services for the elderly to realize their support rights and interests. As a democratic guarantee system in a modern society, a legal aid system is of great significance for further developing socialist democracy and realizing equality before the law and judicial justice under socialist conditions. 16 Meanwhile, as a basic right of citizens, legal aid can provide free legal support for citizens who cannot afford to hire lawyers and other professional legal services due to economic difficulties or other factors. A legal aid system is indispensable for the judicial protection of the elderly’s support rights and interests. More intervention of professional legal service providers, such as legal workers and legal aid lawyers, is conducive to improving the judicial protection of the elderly’s support rights and strengthening the understanding and respect of the parties for the authority and fairness of judicial procedures. In general, the professional legal services required by the elderly far exceed those provided by legal aid organizations in practice. Therefore, the grassroots legal aid organizations shall be developed to further improve the legal aid system. First of all, the professional implementers of the legal aid shall be expanded. Apart from lawyers, notaries and grassroots legal workers, legal aid institutions can be established in qualified local universities or legal research institutions, and teachers and students who have the ability to provide legal aid willingly can be recruited to supplement them. Second, the proportion of government input shall be increased. Through government leadership and social sharing, the financial support shall be further strengthened to establish a more powerful and perfect legal aid mechanism, and encourage and attract more professionals to join in legal aid agencies. Third, self-dedication shall be promoted among lawyers, and law firms may require lawyers to complete a certain amount of legal aid tasks annually. Fourth, the capacity of grassroots legal workers shall be strengthened through training. Legal workers are the main force to deal with the elderly’s support disputes, so the improvement of their expertise can lead to more effective resolution of disputes.
Third, the urban and rural social security shall be coordinated to build a fairer rural social security system. The coordination of urban and rural social security refers to the overall plan and the comprehensive coverage of the design, operation and management of the social security system, so as to benefit all citizens through the new achievements of social and economic development. 17 The above analysis on the judgment documents shows that 71.4 percent of the elderly people in rural areas filed lawsuits for support disputes, far higher than 28.6 percent in urban areas. Apart from certain internal individual differences between urban and rural elderly, the external factors of urban and rural institutional differences account for a large proportion. The differences between urban and rural areas restricts the protection of the elderly’s support rights and interests, so the elimination of the urban-rural dual gap in the judicial field becomes necessary. From the institutional level, the current differentiated legal provisions shall be changed gradually, so as to eliminate the artificial urban-rural segregation. All citizens shall be treated equally in such systems as medical treatment and social insurance despite their differences in household registration. With the gradual improvement of socioeconomic level and the narrowing of the regional differences in development level, the gap between urban and rural areas cannot serve as a reasonable cause for the difference in the support level. The formal fairness and substantive fairness shall be coordinated in development. Based on the formal fairness, the institutional obstacles shall be removed to realize individual justice. The following factors shall be taken into account at least.
First of all, the differences caused by the household registration shall be eliminated. The major reason for the domestic social differentiation is the unbalanced development between urban and rural areas, which was stemmed from the huge difference between urban and rural interests based on household registration. The long-term distribution of public services in favor of urban areas enlarges the gap between urban and rural areas. 18 As for the support issue, urban and rural residents should have access to the same or similar criteria in the selection of support standards, and should not be treated differently due to the difference in household registration. In the process of urbanization, many rural migrant workers work in cities despite their rural household registration. It is obviously unreasonable to measure their living standards based on the rural level.
Second, equal medical services from urban and rural residents should be promoted. At present, China’s basic medical security system has multiple identification criteria (household registration criteria, employment criteria, administrative department criteria), showing the institutional characteristics of embedded dual economic and social structure. 19 Medical care for urban workers, medical care for urban residents, and new rural cooperative medical care are independent from each other, and the gap between urban and rural medical care has become a constraint for the improvement of the social security system. The country’s medical resources should be integrated to equally benefit both urban and rural residents, so as to ensure better and more comprehensive medical and health services for the elderly. According to China’s Opinions on Deepening the Health Care System Reform, the integration of basic medical care between urban and rural areas shall be gradually promoted in order to alleviate the current differentiation between urban and rural areas. The elderly in both rural and urban areas should ultimately be able to enjoy the same level of medical security services.
Finally, the basic old-age insurance system integrating urban and rural areas shall be built. In 2014, the State Council proposed in its Opinions on Establishing a unified Basic Old-age insurance System for urban and Rural Residents that a fair, unified and standardized basic old-age insurance system for urban and rural residents shall be fully completed by 2020. However, “fragmentation” has become a feature of China’s current old-age insurance system, which causes unfairness in the provision of oldage insurance, thus widening the gap between different groups. 20 As an effective way to actually “keep our aging population healthy and out of poverty”, the combination of new rural social old-age insurance and social old-age insurance for urban residents can benefit both the rural and urban residents. The coverage of the system should be expanded gradually, the social endowment ability should be improved, and the relevant policies should be completed, so as to match the level of old-age insurance with the level of social and economic development. Urban and rural residents are encouraged to actively participate in insurance, so as to make full use of social insurance in ensuring people’s basic living standard, adjusting the distribution of social income, and balancing urban and rural economic and social development.
C. Restorative justice and future spiritual support
According to the data of the China Judgments Online, the current disputes over support rights and interests mainly involve material support, indicating that the claim for material support is still the mainstream. However, in fact, the demand for spiritual support has shown an upward trend. Everyone’s spiritual needs should be adapted to the country’s specific social structure and cultural values, 21 so meeting the spiritual needs of the elderly is of great importance to supporting the elderly. Although spiritual support has been included in the provisions of the Law on the protection of the Rights and interests of the Elderly, the existing judicial documents on spiritual support usually measure the spiritual support through “frequency of visits per year or per month”, which is far from realizing the true spiritual companionship and comfort for the elderly. Therefore, according to the concept of restorative justice, efforts should be made to improve the spiritual support for the elderly from many aspects, such as family, society and the nation.
First of all, family pensions are the main way to realize the right of support for the elderly in China, and family is the major place for the elderly to enjoy spiritual support. The way of old-age care is determined by the economic form and changes with the continuous development of the economy. As a result, family support for the elderly is determined by a family’s economic situation. 22 The law stipulates that the care to assume the responsibility to provide support, i.e. offer suitable material conditions according to the level of social and economic development to meet the living demands of the elderly. Family pensions for the elderly shall be based on a firm social foundation. In such a way, social forces stipulate the principle of support for the elderly and ensure the future generations of family support for the elderly by reaching agreement on the means of support. 23 In addition, spiritual support focuses more on “the connection of emotion and kinship”, rather than the logic of pure rights and obligations. When judging spiritual support, judges should balance emotional morality and legal norms. Judges should not blindly avoid the judgment of spiritual support. If the parties explicitly propose spiritual support, the judges should dare to use legal force on the basis of the whole case, and strive to make fair and appropriate judgments. Due to the lack of implementation methods for spiritual support at present, the judicial authority should actively explore more appropriate and effective implementation methods, so as to ensure the actual realization of the right of the the elderly to spiritual support.
In the second place, the social supervision on the implementation of filial piety shall be strengthened. As a kind of parent-child kinship, “filial piety” gradually develops into a universal norm generally followed by people voluntarily in the long-term development of traditional society. Especially in rural areas, it is easier for filial piety to educate and warn people in a relatively close acquaintance society. Therefore, filial piety should be promoted and spread as the bottom line of social morality, so as to fully exercise the supervision role of public opinion on filial piety in combination with corresponding rewards and punishments. People who fail to fulfill the responsibilities to support parents should be subjected to corresponding social moral condemnation, thus falling into disrepute. In such a way, public opinion can develop into a kind of social supervision.
The judicial protection of the elderly’s support rights and interests is embedded with the realization of restorative justice. The affairs of the elderly shall be handled in accordance with the law, so as to strictly protect the legal rights of the parties concerned. Meanwhile, attention should also be paid to inspiring people's good moral will and emotions, and cultivate the right concept on filial piety and moral responsibility. Judges should be adept at utilizing multiple social norms and should improve their ability in legal and moral practice, and make legitimate, reasonable and reasonable righteous judgments, thus both protecting the legitimate rights and interests of victims without damaging the emotional connection that should exist between obligors and obligees, instead they should strive to repair that connection. In other words, the following principle shall be observed in the judicial protection of the elderly’s support rights and interests “The law ensures social stability, while virtue nourishes the mind”.
(Translated by Lu Mimi)
* ZHAO Shukun ( 赵树坤 ), Professor and Doctor of Law, Institute for Human Rights, Southwest University of Political Science and Law.
** YIN Yuan ( 殷源 ), Master of Law in Southwest University of Political Science and Law.
1. United Nations Population Fund, “UNFPA China”.
2. United Nations Population Fund, UN Topic on Ageing.
3. Tian Xueyuan, China’s Elderly population (Society) (Beijing: Social Sciences Academic Press, 2007), 198.
4. Articles 37 and 71 of the Law on the Protection of the Rights and Interests of the Elderly for the responsibility of the State and the society for “spiritual support”.
5. The Supreme People’s Court of the People’s Republic of China: China Judgements Online. The data were collected from China Judgements Online. To ensure the validity and accuracy of the data herein, the author reanalyzed the data based on the database update.
6. In the collected sample documents, only five documents do not involve the elderly as the subjects, accounting for 1 percent.
7. The samples involve the following ethnic groups: Tibetan, Manchu, Hui, Dai, Yi and Gelao.
8. The 489 samples refer to those involving a parent-child relationship and agreed support relationship. The plaintiffs and defendants of the other 11 samples do not involve the aforementioned relationships. The 11 samples were rejected for a court hearing due to unqualified subjects (3 samples) and sibling relationship (8), without any omission.
9. Three samples (unqualified subjects) were not included as they do not conform to the indicators here. There is no missing sample.
10. Judges usually support material claims, including: 1. basic alimony; 2. medical expenses; 3. nursing expenses for the elderly who cannot take care of themselves; 4. necessary spirit consumption; 5. necessary insurance premium.
11. Restorative justice is a common term used in the research on criminal law. The core proposition is that crimes damage human relations and the relationship between people and society, leading to the breakdown of inter- personal relationships. In such kind of situation, retaliation and punishment are not enough to achieve social justice, but a new harmonious status shall be established based on the recovery of the damaged interpersonal relationships. Restorative justice is a theory reflecting on traditional retribution theory, teleology and penalty theory.
12. Wang Jing, Retrieving Families: Rural intergenerational Cooperation and Mental Health of the Elderly (Beijing: Social Sciences Academic Press, 2016).
13. Wang Yuzhong, “On the Transformation of Family Pension from Ethical Mode to Legal Mode”, in Selected papers in Gerontology, vol? 2 (Fuzhou: Gerontological Society of Fujian, 1998).
14. Zhong Zhangbao, Research on Social pension Security in Rural China (Beijing: China Social Sciences Press, 2017).
15. Ma Jianhua, “On the Perfection of China’s Judicial Conciliation System,” Contemporary Law Review 5 (2010).
16. Liao Zhonghong, “Basic Ideas on China’s Legal Aid System,” Modern Law Science 4 (1997).
17. Ling Wenhao, Study on the Construction of the Social Security System for the Elderly in urban and Rural Areas: Based on the Survey of 87 Counties (Cities and Districts) in Henan (Beijing: China Social Sciences Press, 2017).
18. Ren Yuan, “Reform of China’s Household Registration System: Practical Dilemma and Mechanism Reconstruction,” Social Sciences in Nanjing 8 (2016).
19. Qiu Yulin, Zhai Shaoguo and Hao Jia, “Study on the Overall Development of Urban and Rural Medical Security: Theory, Evidence, and Countermeasures,” China Soft Science 4 (2011).
20. Xue Huiyuan and Zhang Weina, “Establishing a Unified Social Endowment Insurance System for Urban and Rural Areas – Basic Concepts, Basic Paths and Institutional Patterns, ” Taxation and Economy 3 (2014).
21. Wang Jing, Back to Home: Rural intergenerational Cooperation and Mental Health of the Elderly (Beijing: Social Sciences Academic Press, 2016): 156.
22. Yao Yuan, “On the Value of Blood Kinship: A Theoretical Discussion on Chinese Family Support System for the Elderly, ” Chinese Journal of population Science 6 (2000).
23. Zhong Zhangbao, Research on Social pension Security in Rural China (Beijing: China Social Sciences Press, 2017): 55.
