ZHANG Yanfeng*

 

Abstract: The 20th National Congress of the Communist Party of China put forward the task to ensure all elderly people enjoy basic senior care services. In an aging society, basic senior care services are key to protecting the basic human rights of the elderly. The government-society partnership is an ideal model to guarantee basic senior care services. In terms of responsibility distribution, the government and social organizations should follow the principle of subsidiarity. On the one hand, social organizations undertake the responsibility to provide basic senior care services under public constraints with regard to service prices, service content, and service targets; On the other hand, the government is the responsible guarantor for minimum senior care services and the prevention of risks. The government’s responsibility of guaranteeing minimum senior care services lies in the government taking over relevant projects after the occurrence of risks. Constrained by the principle of subsidiarity, the government’s responsibility for risk prevention shifts from ex-ante prevention to interim and ex-post prevention. Emphasis should be placed on the principle of the government and society assuming shared responsibilities for risk prevention and achieving risk prevention through government spending.

 

Keywords: basic senior care services · principle of subsidiarity · government-society partnership · risk prevention

 

The Report to the 20th National Congress of the Communist Party of China (20th CPC National Congress) proposed to implement the national strategy of actively coping with population aging, develop the senior care undertaking and the senior care industry, optimize the services provided to the lonely elderly, and promote the realization of basic senior care services for all the senior citizens. “Basic senior care services for all elderly people” means that all elderly people can access basic, reasonable, non-discriminatory, convenient, and affordable senior care services. “Basic senior care services” include a series of comprehensive services such as basic life care, medical care, rehabilitation nursing, recreation, spiritual comfort, emergency rescue, and hospice care for all the elderly, and they are the key to protecting the human rights of the elderly in the aging era. Therefore, in an aging society, the accessibility of basic senior care services determines whether the human rights of the elderly can be effectively guaranteed. In China, “government-society cooperation” is one of the ways to guarantee basic senior care services.¹ For example, the Opinions of the Communist Party of China Central Committee and the State Council on Strengthening the Elderly Work in the New Era proposes “Encouraging all kinds of public welfare social organizations and charitable organizations to increase investment in the cause of the elderly.” The “14th Five-Year Plan” National Planning for the Development of the Elderly Cause and the Senior Care Service System (hereinafter referred to as the 14th Five-Year Plan for Senior Care Services) establishes the principle of “fully mobilizing the enthusiasm of social forces to provide the people with convenient, affordable, and quality-guaranteed senior services,” and “adhering to the development goals of joint participation by the government, society, families, and individuals, each fulfilling their respective responsibilities.” When the government and social organizations share the task of ensuring basic senior care services, the logic for responsibility distribution is the core issue, which will profoundly affect the design of the basic senior care service system. Only by clarifying the principle of responsibility distribution between the two can we avoid problems such as government responsibilities falling into the realm of private law, unclear responsibilities for social organizations, and even “collective non-responsibility” in government-society cooperation. The issue is the premise of effective protection for basic senior care services.

 

 

 

Article 33 of Constitution of the PRC stipulates that “The state shall respect and protect human rights.” It systematically provides for the basic rights of Chinese citizens in the chapter “Fundamental Rights and Obligations of Citizens.” The positioning of the human rights clause in the front of the chapter “Fundamental Rights an Obligations of Citizens” indicates that it is overarching and general, meaning that the basic rights listed in the constitutional text are the most important human rights. “Old age” itself entails survival risks, for example, health risks caused by the deterioration of the physiological function, and the resulting incapacitating risks, which tend to be irreversible. As can be seen from the aforementioned connotations, basic senior care services have a positive effect on overcoming the “risks” brought by “old age.” Therefore, guaranteeing basic senior care services is essentially protecting the basic rights of the elderly, including the right to material assistance, the right to personal dignity, the right to equality, and other basic rights stipulated in the Constitution.

 

 

One of the connotations of basic senior care services is to meet the needs of the elderly for urgent, necessary, or basic senior care services.² Article 45 of the Constitution of the PRC stipulates that “Citizens of the People’s Republic of China shall have the right to material assistance from the state and society when they are aged, ill, or have lost the capacity to work.” The primary task of protecting the right to material assistance is to provide the subject of the right with a minimum basic subsistence guarantee, as stipulated in Article 2 of the Regulations on the Minimum Subsistence Guarantee for Urban Residents: “...Those with per capita income of family members living together below the minimum subsistence guarantee standard for local urban residents shall have the right to receive basic material assistance from the local people’s government.” Without material help for subsistence, such rights subjects would often be faced with the risks for survival. As mentioned earlier, “old age” is often seen as a “survival risk.” The physiological functions of the elderly often gradually decline with age, and their dependence, vulnerability, and insufficient self-care ability will become increasingly prominent. So it is difficult for the elderly to address the survival risk alone. To address this risk, basic senior care services are indispensable in that they provide the necessary survival care. It can be said that as human society enters the aging era, for the elderly, access to basic senior care services is the prerequisite for their actions, and is a necessity for survival, like life, health, food, etc. More and more countries are joining the reform of “high social services-low cash benefits,” and social security benefits for citizens’ survival care are increasingly emphasizing service benefits.³ It can be seen that the “material help” needed by citizens in old age includes basic senior care services, and ensuring basic senior care services is to provide necessary life care for them while preventing survival risks means protecting their right to material assistance.

 

 

Article 38 of the Constitution of the PRC stipulates: “The personal dignity of citizens of the People’s Republic of China shall not be violated.” In terms of constitutional jurisprudence, the “human dignity clause” of the Constitution has a “double normative significance,” as “human dignity” not only refers to specific rights such as the rights to reputation and portrait but also has a general and principled nature. It combines with the provision of “the state shall respect and protect human rights” in Article 33 to form the basic value in the entire human rights protection system,⁴ indicating “the rights enjoyed by citizens for being respected as subjects with an independent will.”⁵ Indeed, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights all enshrine the status of human dignity in their respective preambles.⁶ The role of the minimum subsistence guarantee realized by the aforementioned right to material assistance not only provides survival security but also protects human dignity. “Human beings are biological beings that must need basic living conditions such as food, clothing, housing, and transportation to survive. If food, clothing, housing, and transportation are not guaranteed, then their dignity is greatly reduced.”⁷ For the elderly, basic senior care services mean comprehensive services to ensure their basic living conditions such as food, clothing, and housing, and are the prerequisites for them to live with dignity — that is the reason for “dignity” to be listed as one of the basic principles of the United Nations Principles for Older Persons.

 

Of course, the human rights value of dignity also points to the guarantee of a higher standard of living for citizens consistent with human dignity. Just as Article 11 of the International Covenant on Economic, Social and Cultural Rights specifies food, clothing, and housing as the content of an adequate standard of living for all while stating that everyone has the right to continuously improve his or her living conditions based on an adequate standard of living, i.e. the right to a higher standard of living more consistent with human dignity. Article 14 of the Constitution of the PRC establishes the national task of “establishing a sound social security system compatible with the level of economic development.” The article clarifies that the social security system shall be commensurate with the level of economic development and provides that “the state shall ... based on the development of production, gradually improve the material and cultural wellbeing of the people.” This means that social security should not stop at a “minimum subsistence guarantee,” but should also aim at the gradual improvement of people’s living standards and public well-being. Basic senior care services should pursue not only “accessibility by all the elderly,” but also the goal of continuously improving old-age services.⁸ Therefore, guaranteeing basic senior care services is to protect human dignity.

 

 

The goal of “enjoyed by all the elderly” emphasized by the basic senior care service policy is also the proper meaning of the right to equality in the aging era. As a fundamental right stipulated in Article 33 of the Constitution of the PRC, the right to equality has both formal and substantive aspects. Formal equality means equal opportunities, social equality, and equality in initial resource distribution.⁹ “Basic senior care services for all the elderly” is an effective guarantee for formal equality, meaning that the elderly have the right not to be treated differently due to differences in health, age, wealth, and other factors and that they can obtain the same basic senior care services. Meanwhile, the concept of substantive equality notes the innate and acquired differences, which are overlooked by the concept of formal equality. Therefore, “to correct the de facto inequality caused by the formal equality of the guarantee to a certain extent, different methods are adopted according to the specific attributes of each person, and the substantive equality guarantee is carried out as a prerequisite for the personality development of each person.¹⁰ Thus, reasonable differential treatment is allowed, and the weak are treated favorably to some extent. For example, the current basic old-age service policy emphasizes the “subsistence coverage” nature of basic senior care services and targets vulnerable groups such as the impoverished and those on subsistence allowances.¹¹ In this way, “inequality” can be kept within reasonable limits and equal outcomes can be ensured to the benefit of all. It can be seen that ensuring basic senior care services also means protecting citizens’ equal rights.

 

 

“The existence of a right means the existence of a concept and system that allows others to bear and perform corresponding obligations.”¹² Confirming the connotations of the right to basic senior care services means the existence of the subject of the realization of rights. Seen from the perspective of constitutional norms, these subjects include multiple subjects, such as the family, the state, and society with children as the core. Family as the basic unit of society plays a basic role in the provision of welfare. For example, the Law on the Protection of the Rights and Interests of the Elderly promulgated in 1996 stipulates that “senior care mainly relies on the family.” In China, the long-standing culture of filial piety contains the traditional concept of “raising children for security in old age.” Therefore, children have been the main subject of care for the elderly since ancient times. Accordingly, Article 49 of the Constitution of the PRC stipulates that “adult children have the obligation to support their parents,” and Article 26 of the Civil Code also makes similar provisions. However, the latest Law on the Protection of the Rights and Interests of the Elderly explicitly deletes the expression “the elderly mainly rely on the family for senior care.” The reason is that, with social changes, the family’s ability to care for the elderly has weakened. Since the beginning of reform and opening up, many new changes have taken place in the “family.” First, due to the past family planning policy, the size of the family has been miniaturized. Second, a large number of non-traditional types of families, such as empty nest families, DINK households, and single-parent families have emerged. Third, new social trends such as urbanization, migrant workers, and population migration have made it impossible for children to assume the responsibility of caregiving for their elderly parents.¹³ Therefore, many families are faced with difficulties in the time, energy, and professionalism of senior care. As a result, the senior care provided by families is very limited.

 

The family’s weakening capability to care for the elderly means that the realization of the rights of the elderly will be faced with difficulties.Although the basic senior care service policy proposes to enhance the function of family-based senior care services, it is not enough. “As the care needs of the elderly evolve into a survival risk, they would become beyond the private sector, and this risk can easily spill over into a social risk and harm the public interest.”¹⁴ In the context of insufficient family capacity, if the state does not provide the necessary benefits and protection, and individuals cannot take responsibility for themselves, fundamental rights are bound to be seriously threatened. Since basic senior care services are closely related to basic rights, on the one hand, according to the function of the beneficiary right of basic rights, the state is duty-bound to directly pay for materials and services for the realization of basic rights. On the other hand, according to the objective value order function of basic rights, the state has the obligation to create and maintain conditions favorable for the realization of basic rights through active actions, so as to guarantee the basic rights of citizens.¹⁵ For example, fundamental rights, as an objective order of values, require the state to establish and maintain the organization for the realization of fundamental rights.¹⁶ As mentioned above, in the specific system design for basic senior care services, China has adopted public-private cooperation, such as government procurement of services, to join hands with the private sector to supply basic senior care services and to make up for the shortcomings of state payments, so as to realize the effective protection of the basic rights underlying basic senior care services. Meanwhile, according to Article 45 of the Constitution of the PRC, “state” and “society” are the subjects of obligation for citizens to receive material assistance in old age. When the family as the internal force cannot effectively serve the function of basic senior care services, it is only natural for the “state” and “society” as the external forces to guarantee basic senior care services according to the protection of basic rights in the Constitution.

 

The dimension of basic rights protection provides the academic basis for the “state” and “society” to share the responsibility for basic senior care service security, while positive law also provides the corresponding normative basis. After reviewing the specific system design, it is not difficult to find that the “state” in guaranteeing basic senior care services usually refers to the “government.” The transition process of modern countries shows that in most cases, the transition requires the state to play the institutionalized role of “modern government” and build a governmental function system with “economic regulation, market supervision, social management, and public services” as the core.¹⁷ Basic senior care services belong to basic public services, so their provision is the basic function of the government. The connotations of “society” are relatively rich, including market organizations and social organizations, both of which are important social forces. However, to ensure the publicity of basic public services, and better protect basic rights, we have to weigh the pros and cons of different types of organizations. In theory, social organizations have proven more advantageous as organizational arrangements because of their prominent publicity. In the past, due to the influence of the “dual management system” of social organizations, it was difficult to establish social organizations, so there were all sorts of market organizations in the public service field.¹⁸ However, market organizations are committed to profit output and distribution, and the senior care services they provide are usually for the elderly who have sufficient economic means to pay, so as to make profits — in line with their for-profit goals. Although the market can improve the efficiency of service supply by means of competition, there is a huge contradiction between the public-welfare nature of basic senior care services and the profit-seeking nature of private capital. For example, the market logic of “the highest price wins” is not compatible with the ability to pay for most of the elderly that need basic pension services, since they do not have the capability to pay. Pure market competition will inevitably produce a large difference in interests in the field of basic senior care services. Meanwhile, there is the dilemma of “contract failure” in the field of basic senior care services, and the limitations of the market mechanism will be amplified by the loss of contractual constraints. The information asymmetry between service purchasers and service holders strengthens the information disparity between service providers and service buyers, so buyers lack a basis for judging whether the services provided by the suppliers meet the requirements of the contract. In this case, suppliers may have an opportunistic tendency to reduce the quality of services by raising prices for higher profits.¹⁹ Therefore, the criticism of marketization is often related to distributive justice, and improper price increases, service quality degradation, and exclusion of supply, which are all problems that may be caused by marketization.

 

Social organizations can compensate for the above shortcomings of market organizations. First, they are non-profit, and “the purpose of their establishment is to undertake public affairs and provide social public goods other than state administration.”²⁰ Therefore, they will not exclude supply because of differences in the ability of older persons to pay. Second, their non-profit nature requires them to follow the principle of “prohibiting benefit distribution,” which can effectively realize the separation of property between social organizations and their founders, and prevent financial funds from becoming a source of profit for their founders or members. Therefore, they are advantageous in ensuring the use of special funds earmarked by state finance. Third, the principles of “non-profit” and “prohibiting profit distribution” also enable social organizations to overcome the impact of “contract failure” to a certain extent, thereby compressing the space for opportunist behavior and reducing deviations in the pursuit of profits, such as price increases and service quality reductions.²¹ Of course, the essential difference between “marketization” and “socialization” is as follows: the responsibilities for old-age service security under the market-oriented model still rests with the family, and the family pays the fee according to the market pricing to obtain senior services; those under the socialized model is the sharing of family responsibilities by social organizations, and the responsibility sharing turns senior care services from “private affairs” to “collective affairs.”²² Therefore, social organizations are more suitable for providing basic senior care services and are the justifiable choice of the state to share with society the responsibilities for guaranteeing basic senior care services. Some scholars have said: “The key to the establishment of the social security system is to distinguish and coordinate the relationship between marketization in the field of economy and non-marketization in the field of social livelihood. In other words, necessary restrictions must be imposed on the marketization principle, but they should be limited to the field of economic life, rather than allowing it to become a principle in the field of social livelihood.”²³ In terms of system design, for example, the Opinions on Reforming the Management System of Social Organizations to Promote Their Healthy and Orderly Development require that “Efforts be made to gradually expand the scope and scale of services purchased by the government from social organizations, and priority should be given to public service projects from social organizations under the same conditions, including people’s livelihood security, social governance, and industry management.”

 

 

The preceding part clarifies that the government and social organizations should share the responsibilities for ensuring basic senior care services, so how should the responsibilities be distributed between them? Their public law responsibilities are different. After all, “the highly developed social division of labor and the increasing pluralism of interests have intensified the distinction between the state and society in terms of the functions of affairs.”²⁴ In modern times, the role of government has evolved from the “night watcher” in the laissez-faire era to the “regulator” in the era of the welfare state, and then to the “facilitator” in the era of public governance. The model of the government solely shouldering the tasks of public administration has become history, and from “omnipotent government” has given way to “limited government.” At the same time, the relationship between the state and society has been constantly renewed; the autonomy of the subsystems in the social system has been fully respected and promoted, and social functions have been distributed among various stakeholders, which has launched public-private cooperation in the mode of partnerships.²⁵ Therefore, since cooperation between the government and social organizations already appears in the field of basic senior care services, the responsibilities between them can be distributed through the principle of subsidiarity, so as to ensure that under the principle of cooperation, they can jointly and effectively complete the tasks of public administration and avoid offside and absence between one another.

 

The principle of subsidiarity is the basic principle in the field of payment administration. It is the cooperative mechanism between the state and society,26 and the principle for the distribution of powers among different social levels.²⁷ The essence of the principle of subsidiarity is that smaller subordinate organizations have priority over larger subordinate organizations. In other words, between the government and social organizations, when the social organization as a subordinate organization can handle a certain matter, the government as the superior organization should respect its priority status; on the contrary, when the subordinate organization is incompetent in a certain matter, the superior organization should assist and take over if necessary. The former is a negative aspect of the principle of subsidiarity, while the latter is a positive aspect.²⁸ “In structure, a society consists of small units and large units, that is, from the bottom up of individuals, families, social organizations, and the state.”²⁹ Each unit has its own function, and the respect of the upper unit for the lower unit is the premise to ensure its effective functioning and improper intervention by the upper unit should be prevented. The protection provided by the upper unit to the lower unit is also indispensable, so as to ensure that the original functional goals of the lower unit can still be achieved when it cannot function, and avoid the impairment of public interests.

 

The subsidiarity relationship between the government and social organizations in the administrative supply can be in the design of China’s public system. For example, Article 5 of the Law on the Protection of the Rights and Interests of the Elderly stipulates: “The state shall establish and improve a social old-age service system based on household care, supported by community care and complemented by institutional care.” The legislation regards the responsibility of the family as a basic responsibility, and emphasizes the follow-up responsibility of the community and institutions in the senior care services, reflecting the priority of individual responsibility and social collective responsibility in the provision of senior care services.” To give another example, the Implementation Outline for Comprehensively Promoting Law-based Administration points out that “Administrative organs shall not resolve matters that can be solved independently by citizens, legal persons, and other organizations, that can be regulated by the market competition mechanism, and that can be addressed through the self-discipline of industry organizations or intermediary institutions, except as otherwise provided by law.” It can be seen that the priority of social organizations in the field of public services has been clarified in the design of the system, and the government has the obligation to give priority to public service supply through social organizations. This system design can activate social forces to a certain extent and reserve sufficient room for social organizations to play their roles. Through the principle of subsidiarity, the basic meanings of the distribution of governmental and social responsibilities can be initially outlined, and the role of the government and social organizations can be rationalized.

 

 

 

As mentioned previously, older persons must receive basic senior care service benefits. When the family’s ability to supply such benefits is weakened, external subjects need to intervene, and the government and social organizations are required to bear the corresponding responsibility for the supply. According to the principle of subsidiarity, when social organizations can independently supply basic senior care services, the government should refrain from excessive interference, since social organizations can independently assume this responsibility. The deep-seated reasons include respect for social autonomy, social obligations of social organizations themselves, the background of the transformation of government functions, and the practical need to make up for the shortcomings in governmental supply.

 

 

In the years of the planned economy, the social structure showed the characteristics of an “overall society.” The “state and society” were integrated, and resources were highly concentrated in the hands of the government,³⁰ which played an all-round role in clarifying directions, determining goals, allocating resources, and regulating production and life,³¹ and the role of social organizations was limited. With the advancement of market-oriented reform, the overall society began to deconstruct, and “the reform of the economic system with the diversification of property rights and the marketization of economic operation as the basic content directly promoted the formation of a relatively autonomous society... Society becomes a relatively independent source of resources and opportunities.”³² At a time when the role of society is constantly being discovered and valued, if the state intervenes too much or does not allocate responsibilities suited to society, society will lose its due role and shrink. This is essentially respect for social autonomy and individual self-determination. It is recognized that the welfare state “is suspected of being transformed into a mechanism for controlling and ‘normalizing’ people’s lives.” To be a beneficiary of the welfare state is to be bound by bureaucratic norms, to let one’s life be structured according to various standards, and thus to be unable to choose the lifestyle after one’s heart.”³³ In contrast, social organizations can rally individual self-determination, and their welfare supply can better meet individualized demands. So the priority of social organizations over the government in assuming welfare supply responsibilities is the result of guaranteeing individual freedom and should be respected. Meanwhile, the essence of social organizations formed based on citizens’ freedom of association is that “the members of the organization transfer part of their autonomy to the social organization through contractual clauses, and the social organization obtains the right transferred by members through contract and consensus and integrates it into the right of autonomy.”³⁴ Therefore, social organizations are a buffer between the state and the individual, and their autonomy is the association and extension of individual freedom, as well as the guarantee of individual freedom. Social organizations undertaking welfare supply activities required by the community fall within the scope of autonomy to be respected by the state.

 

 

The public value of social organizations determines that they should bear the responsibility for the supply. People are important parts and members of society and have a social character. The theory of “social bonding” holds that “people have been in society since birth, and their existence and development cannot be separated from the support of various social relations or the assistance of other members of society.”³⁵ Isolated individuals have insufficient means of survival, and often need to achieve their survival goals through the social relations established between people.³⁶ In particular, urban society has a wide range of social division of labor, interaction, and interdependence, and cooperation is the objective trend of urbanization.³⁷ This means that the narrow-mindedness of people is broken, the public spirit is shaped, and the social bondage between people determines that individuals need to assume certain social roles and fulfill the obligation to maintain and develop society.³⁸ As the connection of individuals, the social organization naturally shoulders the social role that the individual must assume. This means that in a society characterized by cooperation, the members of the organization must free themselves from egoism and cooperate in pursuit of the common good.³⁹ Therefore, when the caregiving function of the family is weakened, social organizations should stand out, as a supplement to families. It is the proper meaning of social organizations’ social roles to fulfill their responsibility to supply and realize social welfare.

 

 

The cooperation between the government and social organizations is often carried out through contracts, and public-private partnership contracts serve as a bridge to realize the transfer of government functions so that the government can distribute its responsibility for the supply of senior care services to social organizations with certain conditions. The contract clarifies the performance standards for social organizations’ responsibility for supplying senior care services, including the quality requirements for senior care services provided by social organizations, the charging standards, the conditions for changing and terminating the contract, and the duration of the contract. The government pays fees to social organizations in accordance with the provisions of the contract, and social organizations provide senior care services that meet the requirements of the contract, in essence performing the responsibility for the payment of senior care services that should have been borne by the government. Such a transfer of functions would help to compensate for the weakness of the government’s responsibility for the supply.

 

In the past, the government was overly burdened with the responsibility of supplying senior care services. During the planned economy period, China established a relatively simple, egalitarian, and state-arranged (rationing system) public service system composed of urban “unit system welfare” and rural “collective welfare system” as the mainstay.⁴⁰ Thus, in the traditional social security system, the government is presumed to be the sole provider of public services,⁴¹ including senior care services, aside from the family. However, with the advent of the aging era, the number of public senior care service institutions becomes insufficient, making it difficult to accommodate the growing demand for senior care services. As a result, the problem of “government failure” has begun to appear. First, the supply capacity is insufficient. On the one hand, due to the lack of competitive mechanisms, the senior care services provided by the government are faced with such problems as high cost, low efficiency, and low quality, and the service effect has seriously deviated from capital investment. On the other hand, due to excessive stratification, the government lacks the ability to timely respond to social needs, while the variety of public goods provided by it is limited, mostly uniform, and cannot accommodate the elderly with special needs.⁴² Second, the financial pressure is enormous. The provision of basic senior care services is territorial. However, local financial resources are limited, and affected by the “promotion rush”, local governments are more willing to assume the image of “development-oriented government,” making the maximization of fiscal returns the guide for governmental activities. Therefore, in fiscal expenditure, the spending on public services is relatively low, compared with that on economic construction and administrative management.⁴³ Third, administrative resources are insufficient. As society becomes increasingly pluralistic and diverse, the tasks of public administration are increasing by the day. Under the “central undertaking system,” local governments are more inclined to complete the goal of the centralized system and allocate administrative resources to central undertakings,⁴⁴ while the senior care service administration as a regular administrative task often cannot acquire sufficient administrative resources.

 

The distribution of supply responsibilities to social organizations can ease the administrative pressure on the government. First, social organizations are more efficient due to the introduction of competition mechanisms, and their flexibility can ensure completion of the same amount of public administration tasks at a lower cost. Second, because they grow up in society, social organizations are better able to learn about the needs of the elderly and accurately provide diversified senior care services. Third, the introduction of private capital can effectively divert the pressure on public finances.⁴⁵ Fourth, professionalism allows social organizations to focus on the task of providing basic senior care services and investing corresponding human, material, and financial resources. Therefore, when the government is faced with “failures” in performing supply responsibilities, it should consider temporarily assigning the responsibility to social organizations.

 

 

 

Social organizations shouldering the responsibility for supplying basic senior care services make up for the government’s inadequacy and have certain public functions. Although social organizations are private subjects and follow the principle of autonomy, there are institutional risks. For example, Article 5 of the Measures of Beijing Municipality for the Implementation of Public Construction and Private Operation of Senior Care Institutions stipulates that publicly built and privately run senior care institutions shall undertake social public service functions. The legal basis for this is threefold:

 

First, it is based on the public nature of basic senior care services. As mentioned above, if the elderly, especially those with poor economic or physical conditions, cannot access basic senior care services, their basic rights cannot be guaranteed. Therefore, basic senior care services have a strong public nature, involving the general public interest. Entities providing such services naturally need to be subject to public constraints to avoid problems in their supply and consequently adverse effects on basic rights.

 

Second, it is based on the public nature of social organizations themselves. First, government power is public. “The government is assumed to be the basic and minimum representative of the common good, and to shoulder the fundamental public responsibility for which only the state is eligible, in order to exercise the public power transferred by the citizens of the whole society.”⁴⁶ Social organizations share part of the government’s public service functions through contracts, and their performance of supply responsibilities is an act authorized or entrusted by government departments. Therefore, just as the government is subject to public constraints in exercising public power, social organizations should also be subject to public constraints when performing supply responsibilities. In addition, unlike market organizations, social organizations are non-profit organizations formed to serve the public good, and they need to comply with the principle of “prohibiting the distribution of benefits” to ensure their public services meet public requirements. Therefore, social organizations themselves have a public character. Ultimately, social organizations have structural advantages in the structure of their relationship with citizens. The demand side for senior care services provided by social organizations is often the economically relatively weak elderly, and it is difficult for them to compete with social organizations economically advantageous and having control over public service resources. Therefore, social organizations should bear the responsibility of public guarantee, so as to balance their asymmetric relationship with citizens and refrain from taking advantage of their dominant position to harm citizens.

 

Third, it is based on the public nature of the contract between the government and social organizations. Although there are private law mechanisms for signing contracts between the government and social organizations, the essence of public-private partnership contracts is to “manifest the administrative will in the form of contracts, and regulate and guide the private sector to better perform the task of public service supply.”⁴⁷ Those contracts have public interest goals that traditional civil contracts do not. Their purpose is to set a certain interest for specific service objects, which are universal and extensive, and the set interest has the characteristics of public interest. Thus, even if a private law similar to a contract is adopted, the purpose is still a public law purpose⁴⁸ and has a public character. In fact, in the relevant legislation of public-private cooperation, the public interest is always the legislative purpose. For example, the Government Procurement Law and the Measures for the Administration of Government Procurement of Public-Private Partnership Projects all take “safeguarding the public interest” as the basic principle for regulating public-private cooperation. Therefore, based on the public nature of the contract between the government and social organizations, the supply responsibility of social organizations should be subject to the requirements for public undertakings.

 

 

According to Article 67 of the Administrative License Law, licensees engaged in specific industries directly related to the public interest shall provide users with safe, convenient, stable, and reasonably priced services, and perform the obligation of universal services. At present, the participation of social organizations in the supply of basic senior care services is no longer subject to prior supervision centered on administrative licensing. However, basic senior care services involve public interests, and the supply responsibilities shouldered by social organizations must still be subject to public requirements such as “providing safe, convenient, stable and reasonably priced services to users, and performing the obligation of universal services.”

 

First, the public constraints on service prices. The rational price of basic senior care services is the natural requirement for social organizations to perform universal service obligations. “Universal service” means universal access to public services that satisfy the needs of survival and development on the one hand, and “affordable” public services that do not impose an unreasonable economic burden on the public on the other hand.⁴⁹ If the price is too high, the elderly with poor purchasing power will be unable to obtain basic senior care services, and that scenario deviates from the public welfare attribute of social organizations. Of course, the pricing of basic senior care services also needs to consider the different economic situations of different groups, whose ability to afford basic senior care services is different. Therefore, the public constraints on the price of basic senior care services are also reflected in meeting the special needs of vulnerable groups. For example, the Guiding Opinions on Standardizing the Management of Service Charges for Senior Care Institutions and Promoting the Healthy Development of the Senior Care Service Industry proposes to implement a free policy for the “three without” elderly. For widowers, widows, orphans, senile elderly people, and disabled or semi-disabled elderly people with other financial difficulties, food expenses, and other service charges shall be collected in accordance with the non-profit principle, and bed fees and nursing fees shall be set by the government or according to the guidance of the government.

 

Second, the public constraints on service content. Specifications should be made on the obligation of social organizations to provide safe, convenient, and stable services, which are all content requirements for basic senior care services. Among them, “safe” and “stability” are the minimum requirements. “Safety” is one of the basic human needs. In the “Appeal Case of Right to Life Dispute between Yileru Pension House and Fang Changchun in Lucheng District, Wenzhou City,” the court held that “the victim Fang Zongyu had moved into the appellant’s Yileru Pension House in Lucheng District, Wenzhou City by signing an agreement, so the appellant should provide Fang Zongyu with the residential services stipulated in the agreement and fulfill its security obligations.”⁵⁰ It can be seen that fulfillment of security guarantee obligations often becomes an important basis for deciding whether the pension institution should bear legal responsibility in judicial practice. “Stable” means that social organizations shall ensure the continuity and predictability of the basic senior care services they provide — that is the basic principle of public service supply in various countries.⁵¹ For example, Article 52 of the Measures for the Administration of Franchising of Infrastructure and Public Utilities stipulates that “In the event of a dispute during the performance of a franchise agreement, the parties shall, in the process of dispute resolution, continue to perform their obligations under the franchise agreement to ensure the continuity and stability of public goods or services.” A problem with the continuity and stability of basic senior care services means interruption of the supply of basic senior care services, and consequently adverse effects on the basic rights of the elderly. In addition, the basic senior care services provided by social organizations should meet the minimum national standards, which are themselves the result of public considerations. For example, Article 15 of the Measures for the Administration of Government Procurement of Services stipulates that “The service content, level, process and other standard elements of basic public service projects purchased by the government shall meet the relevant requirements of national standards for basic public services.” Of course, the public constraints on the service content of social organizations should not be overly demanding but should be based on the actual supply capacity of social organizations and public-private partnership contracts. Since many social organizations in China are still in the initial stage of development, overly stringent requirements will dampen their enthusiasm to participate in the supply of senior care services. For example, in the “Tort Liability Dispute Appeal Case of Tianjin Donglixunhai Rehabilitation Nursing Home v. Han Zhiwei,” the court held that “the senior care institution as one party should undoubtedly provide high-quality services with due diligence, and the party receiving the service should also rationally and objectively treat the problems that occur in the process of service so that they can jointly improve services of the senior care service institution and maximize its service functions and social functions.”⁵²

 

Third, the public constraints on the service object. The universal service obligation derives from the fundamental principle of equality, and it is justified by the fact that all groups, regardless of position in the income distribution system shall be granted access to public services.⁵³ According to the universal service obligations, social organizations shall implement the principle of non-discrimination in providing basic senior care services, comply with the principle of equality in selecting service recipients, and provide basic senior care services for the elderly without discrimination, so as to extend basic senior care services to all and avoid imbalances and fractures between groups and regions. For example, Article 46 of the Measures for the Administration of Franchising of Infrastructure and Public Utility stipulates that the provision of public goods or services must be universal and non-discriminatory, and there should be no differential treatment. In addition, based on the concept of substantive equality, social organizations should also prioritize vulnerable groups in the provision of basic senior care services. For example, Measures of Beijing Municipality for the Implementation of Public Construction and Private Operation of Senior Care Institutions stipulates that “publicly built and privately run senior care institutions... shall be based on giving priority to basic old-age service targets with housing needs open to the city’s disabled or senile elderly without household care.”

 

 

 

Institutional risks are one of the important types of risk in a risk society.⁵⁴ Their main influencing factors consist of the object of risk regulation. Also known as business risks, they are risks that are oriented at risk regulators and that hinder the realization of risk regulation objectives. For example, the production of unqualified products or the occurrence of potentially harmful illegal acts are risks at the individual level.⁵⁵ Institutional designers expect social organizations to overcome “market failure” and “government failure” with their outstanding public attributes, but they also have to face the possible institutional risks of social organizations. As voluntary sectors, social organizations have an innate dependence on public funds or resources.⁵⁶ Without the continuous supply of resources or funds, their non-profit activities will become unstable and affect the realization of their public welfare goals, and in more serious cases, the social organization will collapse. In China, the government is the most important resource provider for social organizations engaged in public services.⁵⁷ However, the cooperation between the Chinese government and social organizations mostly relies on project-based logic, while projects are subject to cyclical influence. As a result, the government’s resource support for social organizations is unstable. Another characteristic of the project system is that it follows a “matter-based” logic, and the business needs of the administrative department will affect the sustainability of political-social cooperation, making it impossible for social organizations to form stable development expectations.⁵⁸ This “insufficient charity”⁵⁹ weakness of social organizations will lead to “poor performance” or even “non-performance” of their supply responsibilities.

 

First, although social organizations are non-profit legal persons and abide by the principle of “prohibiting the distribution of benefits”, they will engage in business activities⁶⁰ to alleviate the crisis caused by insufficient funds. And “it is common for the profit-making component to exceed the non-profit component.”⁶¹ Therefore, even if the profit part is not distributed, social organizations, like market organizations, may use loopholes such as incompleteness, ambiguity, and information asymmetry of public-private partnership contracts to pursue profits, so as to acquire the resources needed for their survival and development. Therefore, there will also be cases where social organizations reduce costs and use shoddy products for profit,⁶² thus undermining the quality of their supply of basic senior care services.

 

Second, due to the dependence on resources, social organizations are constrained by resource suppliers in operation, and the constraints lead to a “development-oriented organizational strategy for resource extraction,”⁶³ and affect the quality of basic pension service supply to a certain extent. For example, government demand affects the service supply activities of social organizations, and “the autonomous production of social organizations is affected to a considerable degree by the logic of governmental administration, making it difficult to present the demands and values of society.” The service supply of social organizations tends to follow the “universal standards” set by the government, ignoring the specificity of the service recipients.⁶⁴ Therefore, the goal of diversifying the supply of basic senior care services through political and social cooperation cannot be achieved, and the quality of basic senior care service supply cannot be improved. For another example, in the bidding process, social organizations have to constantly lower the price to win the government’s favor in the bidding. After winning the bid, they will compensate for the economic impact of low prices in the bidding by reducing costs, thereby adversely affecting the quality of basic senior care services.⁶⁵

 

Third, social organizations will naturally choose to avoid risks. Otherwise, risks will incur unnecessary resource consumption, and undermine organizational development. For example, in the selection of service objects, the elderly who are deemed high risks, such as the senile and disabled elderly, are often the objects of careful consideration in practice; they are usually excluded from the service objects by social organizations. Studies have shown that “some publicly built and privately run senior care institutions no longer perform public welfare functions and refuse to accept disabled elderly people, especially severely disabled ones.”⁶⁶ However, that group is the group with the most urgent demand for basic senior care services.

 

Fourth, the development of social organizations in China is slow, and the government often tends to abandon the competition mechanism because competent social organizations are too few and sparse, and opt for the method of “targeted purchase” or “single entrustment” to confirm cooperative subjects, who are often social organizations closely related to the government department. The lack of a competition mechanism is the key to the failure of public service outsourcing.⁶⁷ Without competition, social organizations cannot be forced to improve the service quality, while closed government-society cooperation can easily lead to power rent-seeking or corruption⁶⁸, thus affecting the supply quality of basic senior care services.

 

Institutional risks affect the supply quality of basic senior services, and consequently the realization of the basic rights of the elderly. The China’s Constitution stipulates that the state has the obligation to respect and protect human rights. When the fundamental rights of older persons are threatened by institutional risks, there is a clear need for the government to intervene, so as to ensure protection for fundamental rights from risks or to provide appropriate remedies. Even if the socialization reform of the supply of basic senior care services has transferred the pressure of supply responsibility on the government, the government cannot be separated from the constraints of the responsibility for human rights protection. Thus the specific allocation responsibility of the government needs to be further clarified.

 

 

According to the positive aspect of the subsidiarity principle, when the social organization as a subordinate organization is not competent for a certain matter, the government, as the superior organization, cannot ignore the infringement on public interest and should take matters into its own hands to ensure the realization of social goals when necessary.⁶⁹ Therefore, when social organizations cannot perform the task of providing basic senior care services (for example, because of bankruptcy), the government must shoulder the full responsibility. The underlying reason is that the government has a supply obligation to citizens. Article 45 of the Constitution of the PRC stipulates that citizens have the right to receive material assistance from the state in old age. The stipulation reflects the beneficiary function of basic rights, that is, the state is required to assume the obligation to supply various materials or related services, so as to realize the basic rights of citizens.⁷⁰ As mentioned above, basic senior care services are a justifiable part of the right to material assistance enjoyed by the elderly, so the government has the obligation to supply basic senior care services. In fulfilling the obligation, the government acquires legitimacy for exercising public power. The 16th National Congress of the Communist Party of China included public services in the scope of government functions. Basic senior care services fall in the category of public services, and their provision naturally is an inherent function of the government. The government may change how it fulfills its obligations, but the provision of basic senior care services will always be part of its functions. Although social organizations participate in the provision of basic senior care services, the government’s supply obligation to citizens will not change. Therefore, when social organizations become unable to provide basic senior care services, the government must bear the corresponding responsibility. Imagine, once the government’s responsibility escapes, but private subjects (social organizations, families) cannot provide basic senior care services, there will be a considerable adverse impact on the basic rights of the elderly. As stated in General Comment No. 3 of the International Covenant on Economic, Social and Cultural Rights, “the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party.”⁷¹

 

In terms of normative form, the government’s minimum-guarantee responsibility is specifically manifested as a “government takeover.” When social organizations cannot effectively provide basic senior care services, only a governmental takeover can ensure the public welfare, continuity, and stability of public service supply. In other words, in the provision of basic senior care services through government-society cooperation, we must uphold the supremacy of public interests, “ensure that public interests are higher than other interests including the stability of contractual commitments, and even break the existing commitments between the parties to the contract to ensure the good provision of public services and the realization of public interests.”⁷² For example, the Guiding Opinions on Public-Private Cooperation stipulates that “In the process of public-private partnership, if a force majeure or default event leads to the premature termination of the project, the implementation agency shall take over promptly to ensure the continuous operation of the project facilities and avoid infringement on public interests.” Of course, a governmental takeover does not mean that the government needs to fulfill the corresponding supply responsibilities all by itself. Influenced by public-private cooperation and the positioning of the government’s 

supporting role, the fulfillment of government responsibilities will emphasize respect for social autonomy, and responsibility sharing and cooperation between the government and social organizations. Therefore, the specific way for the government to take over can be either the government performing on behalf of the social organizations or entrusting other social organizations.

 

 

Under the constraint of the subsidiarity principle, when social organizations can independently complete the supply tasks, it is inappropriate for the government to directly intervene in their supply activities. However, this does not mean that the government can sit back; instead, it still needs to ensure that social organizations perform their supply responsibilities properly. In other words, when social organizations as the subordinate organization can independently complete a certain matter, the government, as a superior organization, should not interfere but should concentrate on exclusive functions such as guidance, supervision,⁷³ and urging, to prevent institutional risks. The government’s responsibility for risk prevention is the result of its expanded obligation to protect.⁷⁴ As mentioned above, in the relevant articles of civil rights in the Constitution of the PRC, such terms as “state protection” and “national development” indicate that aside from the function of beneficiary rights, basic rights also serve the function of objective value order, requiring the state to undertake the obligation to protect basic rights. In other words, when citizens’ basic rights are violated or threatened by a third party, the state has the obligation to protect those rights from risks or provide necessary remedies.⁷⁵ Basic senior care services are highly related to constitutional fundamental rights, so they also have to be realized through the state’s protection obligations. As some scholars have put it: “Even after the privatization of administrative tasks, the state still bears the obligation to respect, protect and realize the basic rights of citizens.” However, in such cases, the constraint of basic rights on the state is no longer manifested as defensive rights against the state or the right to demand its supply only, but also as the requirement for the state to fulfill its “protection obligations”⁷⁶. As mentioned above, individual citizens are highly dependent on the basic senior care services provided by social organizations, and there is a structural asymmetry between them and social organizations, so it is difficult for them to resist institutional risks or bear the harms. Therefore, the government has the obligation to protect older persons from institutional risks. Just imagine, if the aforementioned governmental minimum guarantee is required, institutional risks will have occurred and the fundamental rights of the elderly will have been physically damaged. The damages are irreversible for the already physically vulnerable elderly. Therefore, through its obligation to protect basic rights, the government has to bear the corresponding responsibility for risk prevention. Of course, due to the context of public-private partnerships and the subsidiarity principle, the government’s responsibility for risk prevention will also take on new characteristics. 

 

 

For the government, the traditional performance of risk prevention responsibilities is mainly achieved with prior risk prevention tools such as administrative licensing, and the focus is on the access control of social organizations. Specifically, social organizations and their development fields are screened in advance, and thresholds and norms for their establishment and operation are established. This model is not conducive to the cultivation of social organizations and is inconsistent with the public-private partnership background that emphasizes the activation of social roles and the auxiliary roles assigned to the government. Besides, in this mode, law enforcement departments have to spend a lot of energy on checking “validity”, for example, whether a license has expired and whether the materials provided are authentic, but they have no time for daily supervision.⁷⁷ It is impossible to achieve good risk prevention results at the moment when institutional risks are intensive. Therefore, the performance of risk prevention responsibilities should be moved backward, from before the event to during and after the event.

 

By comparing the amendment to the Law on the Protection of the Rights and Interests of the Elderly in 2015 and 2018, we can see this change in risk prevention responsibilities. The amendment in 2015 stipulates that the establishment of senior care institutions needs to follow the system design of “administrative licensing — registration” or “registration — administrative licensing” for prior risk prevention, and imposes many restrictions on the establishment of senior care institutions, in line with typical pre-event risk prevention responsibility allocation. The amendment in 2018 removes the restrictive conditions for establishing senior care service institutions, and stipulates that “after registration, senior care institutions can carry out service activities and register with the civil affairs departments of people’s governments at or above the county level.” This is a typical post-event risk prevention responsibility configuration and replacement of the prior permission system with a registration and filing system lowers the entry threshold for senior care service institutions.”

 

The post-event risk prevention responsibility emphasizes in-process risk prevention and is more helpful for preventing institutional risks. Meanwhile, it can promote the development of social forces, mainly because: first, it can control monopoly risks, promote market competition, and improve the efficiency and quality of basic senior care services supplied; second, it can control the risk of price alienation to ensure that the public can enjoy basic senior care services at reasonable prices; third, it can control opportunistic risks and ensure that social organizations can produce senior care services in line with quality standards; fourth, it can control the selective risks of service targets and ensure the realization of the accessibility of all elderly people to basic senior care services. In the final analysis, the key to risk prevention during and after the event lies in ensuring the public nature of social organizations, ensuring the consistency of their non-profit nature, and fully applying diversified regulatory tools such as performance measurement and public evaluation for whole-process monitoring.

 

 

The traditional unitary senior care service supply model is based on the bureaucratic system, in which the government has a hierarchical identity relationship with public senior care institutions established by it. Therefore, the government will more often choose means featuring “order and coercion” to achieve the goal of risk prevention. However, under the model of government-society cooperation, the relationship between the government and social organizations is not an identity relationship, but a public-private partnership based on contract. Under this type of relationship, the responsibility for risk prevention not only lies with the government but can also be borne by society, showing the pattern of the government and society sharing the responsibility. On the one hand, the government and social organizations share responsibility for risk prevention. According to Article 25 of the Measures for the Administration of Senior Care Institutions, old-age service establishments shall bear risk prevention responsibilities by independently formulating and implementing management rules, as well as independently monitoring their implementation. The government’s responsibility for risk prevention is seen in supervising the performance of social organizations’ responsibility for risk prevention. On the other hand, the government and industry associations share the responsibility for risk prevention. Industry associations are an important type of autonomous organization in society and play an important role in promoting industry autonomy in practice. According to Article 8 of the Measures for the Administration of Senior Care Institutions, industry associations supervise and manage senior care service institutions in the industry by formulating industry ethics, industry professional standards (such as quality standards, technical standards, and management standards), industry disciplinary standards, etc., and then bear the responsibility for risk prevention. At this time, the government’s risk prevention responsibility is manifested in supervising the performance of the risk prevention responsibility of the industry association.⁷⁸ Of course, risk prevention in this model depends on social organizations undertaking higher information disclosure obligations. However, it is still necessary to differentiate voluntary disclosure from mandatory disclosure; otherwise; the autonomy of social organizations will be affected.⁷⁹ At the same time, under the constraint of the subsidiarity principle, the government’s allocation of risk prevention responsibility will be adjusted according to the specific situation of social organizations. If social organizations are effective in self-regulation, soft measures will be taken to reduce the intensity of government intervention; if their self-regulation is ineffective, the intensity of supervision will gradually increase.⁸⁰

 

The reasons for emphasizing risk prevention responsibility sharing among social organizations, industry associations, and the government include: First, the government’s unilateral risk prevention has the problem of limited risk awareness. Social organizations and industry associations are better positioned to acquire information and can break the risk prevention failures caused by information asymmetry. Second, the sharing mechanism can release the huge administrative pressure brought by risk prevention responsibility (including both administrative resource pressure and public financial pressure) on the government, and reduce the cost of risk prevention. Third, risks are uncertain, and the external risk prevention mechanism may easily miss the best risk prevention opportunity due to insufficient permeability. Fourth, social organizations themselves are sources of risks and embedding risk prevention responsibility into their organizational structure and decision-making process is essentially an exercise of risk control from the source. Fifth, industry associations have a better understanding of the overall operation of social organizations in the industry and can improve the professionalism of risk prevention. Sixth, the government’s unilateral risk prevention lacks pertinence, and can easily evolve into a regulatory model covering “even the minutest details,” thus incurring excessive regulatory burdens on social organizations. The scenario may not only be against the actual situation of the subject of supervision but may also produce unnecessary waste of resources and reduce the efficiency of service supply.⁸¹

 

 

Under the subsidiarity principle, the government as the highest-level organization in a hierarchical society also serves the function of “compensatory activities,” that is, “it also makes up for the apparent deficiencies in the responsibilities of the lower-level organizations in accordance with their objectives.”⁸² In other words, the government needs to provide the necessary “assistance” to the lower-level organizations and create the conditions for them to better assume corresponding responsibilities. Due to the immature development of social organizations, the government usually plays a leadership, commanding, and restrictor role in preventing risks in social organizations, and seldom plays a guiding, cooperative, or promoting role.⁸³ In preventing institutional risks of social organizations, we should also necessary to solve the internal problems of organizations that cause institutional risks, while enhancing regulatory measures. The construction of social organizations in China is mostly dominated by state (government) logic, and most social organizations have “dependent autonomy,” that is, they develop with the support of government resources.⁸⁴ The occurrence of social organization risks is largely due to the unstable resource supply from the government. The difficulties for senior care service institutions are none other than “materialization of tax incentives”, “insufficient subsidy”, “problem with land use”, and “financing difficulties.”⁸⁵ Therefore, to prevent institutional risks of social organizations, the key is to furnish sufficient development resources for social organizations and encourage them to set greater stores by public interests. For example, Article 39 of the Law on the Protection of the Rights and Interests of the Elderly stipulates that “The people’s governments and relevant departments at all levels shall adopt measures in finance, taxes, land, financing, etc., to encourage and support enterprises, public institutions, social organizations or individuals to set up and operate facilities for senior care, daycare for the elderly, cultural and sports activities for the elderly, and so on.” The government can provide the necessary support to social organizations with the active supply of finance, taxation, land use, financing, etc., thereby improving their internal governance structure and reducing the possibility of institutional risks, in accordance with the incentive-based risk regulation method.

 

 

With the connotations of basic rights underlying basic senior care services as the logical starting point, this thesis aims to recognize the significance of basic senior care services for protecting basic rights. In the aging era, emphasizing the protection of basic rights has profound practical significance. We have to realize that China’s aging process and social transformation go hand in hand and interact with aging. As market-oriented reforms continue to advance, the unit system disintegrates, the collective welfare mechanism for maintaining relative social balance disintegrates, and social stratification continues to progress. Subsequently, the basic public service field (including senior care services) was affected by the market-oriented reform, and assumed the trend of individualized burden, thus incurring bigger social differences. Social inequality can lead to differences in individuals’ ability to cope with risks, and those with little wealth are more likely to be vulnerable.⁸⁶ Basic senior care services guarantee the right to material assistance, personal dignity, and equality, helping the elderly (especially the disadvantaged elderly) in the aging era to obtain survival security relatively equally, ward off risks, and overcome the impact of social differentiation. Otherwise, the interests of the disadvantaged will not be guaranteed; worse still, they may also become disadvantaged in both distribution and production. It can be said that it is the return of civil rights that has re-emphasized the public responsibility of the state and society. This thesis clarifies the responsibility allocation logic for the government and social organizations in guaranteeing basic senior care services, and constructs the public law regulatory system for the basic old-age service guarantee, the government’s comprehensive responsibility and risk prevention responsibility, and the social organizations’ supply responsibility, so as to standardize and institutionalize each link in the cooperative relationship between the government and social organizations, and standardize the socialization trend of basic senior care services.

 

Admittedly, the logic for government-society responsibility sharing in guaranteeing basic old-age services is based on rationalizing the relationship between the government and social organizations. This paper has preliminarily outlined the logic with the help of the subsidiarity principle. However, the rationalization of the relationship between the government and society in the dimension of national governance structure still needs further exploration. Currently, the dominance of the government is prominent, while incomplete autonomy is common among social organizations, and unequal or mixed relations always exist. Those can affect the responsibility sharing effect for the government and social organizations, and lead to responsibility overlapping.

 

(Translated by QIAN Chuijun)

 

* ZHANG Yanfeng ( 张演锋 )， Doctoral candidate at Wuhan University School of Law. This article is a phased research result of the 2021 Major Project of the National Human Rights Education and Training Base for Humanities and Social Sciences of the Ministry of Education (No. 21JJD820005). The author hereby extends his gratitude to Professor Qin Qianhong for his tutoring.

 

1. Basic senior care services have two orientations, namely, “minimum care” and “inclusive care.” For example, the practice of Guangdong in guaranteeing basic senior services emphasizes “upholding minimum care, and ensuring basic, inclusive and equal care,” see Hu Hongwei and Jiang Haochen, “Conceptual Analysis and Policy Implications of the Basic Old-age Service in China”, Social Policy Research 4 (2021). For another example, Hangzhou, Zhejiang Province, also emphasizes the construction of “inclusive basic old-age services” (see “The 14th Five-Year Plan for the Development of Elderly Care Service Industry in Hangzhou”). Therefore, the practice of guaranteeing basic senior care services can be divided into two basic models: one model is the government guarantee of minimum care, in which the government-run institutions are responsible for providing basic senior care services. This model does not involve the distribution of responsibility. The second is the public-private partnership model, that is, the public and private sectors cooperate to jointly ensure supply of basic elderly care services. Based on the nature of the private sector, public-private cooperation can be divided into two basic modes: government-social organization (third sector) cooperation and government-market organization (secondary sector) cooperation. This article limits the discussion to the context of cooperation between government and social organizations. According to the provisions of the Civil Code of the People’s Republic of China, social organizations include social groups, foundations and social service organizations. The social organizations mentioned in this article mainly refer to social service organizations that provide senior care services — they are also called senior care institutions in the text.

 

2. Hu Hongwei and Jiang Haochen, “Conceptual Analyses and Policy Implications of the Basic Old-age Service in China,” Social Policy Research 4 (2021): 23.

 

3. Zhang Kaiyun, Ma Yingying and Wang Yazhu, “From Cash to Services: Limitations, Transformation Motivations and Paths of Social Security Payment Methods,” Zhejiang Social Sciences 10 (2019): 87.

 

4. Lin Laifan, “Human Dignity and Personal Dignity: On Interpretation Scheme of Article 38 of the Constitution of the PRC”, Zhejiang Social Sciences 3 (2008): 51.

 

5. Xie Libin, “Human Dignity from the Perspective of Sino-German Comparative Constitutions,” Tribune of Political Science and Law 4 (2010): 53.

 

6. For example, the Universal Declaration of Human Rights states that “recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights further specify that “recognition that these rights derive from the inherent dignity of the human person.”

 

7. Qiu Ben, A Collection of Essays on Human Rights (Jilin: Jilin University Press, 2009), 33.

 

8. For example, the Opinions on Strengthening the Senior Care Work in the New Era issued by the CPC Central Committee and the State Council of China proposes “focusing on the most urgent problems of the healthy senior care services, guaranteeing the basic services, promoting fairness, improving quality, making utmost effort and doing what we can, to ensure that everyone enjoys basic senior care services and public health services.”

 

9. Xing Yijing, “On Reasonable Differentiated Treatment,” Politic Science and Law 4 (2005): 22.

 

10. Lin Laifan, Theory of Normative Constitutions: An Introduction (Beijing: Law Press · China, 2001), 107.

 

11. Hu Hongwei and Jiang Haochen, “Conceptual Analyses and Policy Implications of the Basic Old-age Service in China”, 23.

 

12. Xia Yong, The Philosophy of Civil Rights in the Context China (Beijing: SDX Joint Publishing Company, 2004), 165.

 

13. Peng Xizhe, “The Contemporary Transition of the Chinese Family and the Reconstruction of Family Policy,”Social Sciences in China 12 (2015): 116-122.

 

14. Xie Bingqing, “The State Responsibility in China’s Long-term Care System and Its Realization Path”, Studies in Law and Business 5 (2019): 42.

 

15. Zheng Chunyan, “Functional System of Fundamental Rights and Approach to the Rule of Administrative Law,” Chinese Journal of Law 5 (2015): 30.

 

16. Zhang Xiang, “System Thoughts of Fundamental Rights,” Tsinghua University Law Journal 4 (2012): 32.

 

17. He Yanling and Wang Guanglong, “China’s Transitional Order and Its Institutional Logic,” Social Sciences in China 6 (2016): 62.

 

18. Jin Jinping, “The Selection of the Organization Forms of Providing Basic Public Services: Also on the Normative Significance of Classifying Profit-Making Corporations and Non-Profit Corporations,” Contemporary Law Review 4 (2018): 22.

 

19. Ibid., 17-18.

 

20. Fang Jie, “Interpretation of ‘Public Services’ Organized by the Third Sector from the Perspective of an Administrative Law System,” Zhejiang Academic Journal 4 (2007): 137.

 

21. Jin Jinping, “The Selection of the Organization Forms of Providing Basic Public Services”, 17-18.

 

22. Xie Yu, “How to Provide Universal Child-care? — Debate on the Model of the Child-care Supply Systems,”Zhejiang Social Sciences 7 (2020): 33.

 

23. Wei Jianguo, “Social Security and Social Law in the Upgrading and Transformation of Urbanization,” Chinese Journal of Law 1 (2015): 60.

 

24. Ernst-Hasso Ritter, “An Examination of the Relationship between the State and the Economy in Cooperative Countries,” translated by Zhao Hong, ECUPL Journal 4 (2016): 6.

 

25. Zhai Xiaobo, “Soft Law and Public Governance,” Science of Law 2 (2007): 5.

 

26. Yu Shaoru, “On the Principle of State Subsidiarity in Administrative Payment,” Jinan Journal (Philosophy & Social Sciences) 6 (2010): 58.

 

27. Zhang Zhiyuan, “Towards the Public-Private Cooperative Administrative Law,” Chinese Journal of Law 2 (2019): 145.

 

28. Ibid.

 

29. Zhang Wei, “The Collaboration Relationship between Government and Social Organizations from the Perspective of the Principle of Subsidiarity — Public and Free Social Work Institutions in Germany as an Example,” Journal of Social Work 2 (2015): 3.

 

30. Sun Liping, Wang Hansheng, Wang Sibin, Lin Bin and Yang Shanhua, “Changes in China’s Social Structure Since the Reform,” Social Sciences in China 2 (1994): 50.

 

31. Zheng Chunyan, “The Reforming Government and the Rule of Administrative Law,” Journal of Zhejiang University (Humanities and Social Sciences) 1 (2021): 53.

 

32. Sun Liping, Wang Hansheng, Wang Sibin, Lin Bin and Yang Shanhua, “Changes in China’s Social Structure Since the Reform,” 48.

 

33. Deng Zhenglai and Alexander, ed., State and Civil Society (Beijing: Central Compilation & Translation Press, 1999), 8.

 

34. Zhang Qing and Wu Yan, “Governance of Social Organizations Under an Inclusive Rule of Law Framework,” Social Sciences in China 6 (2018): 102.

 

35. Wang Taigao and Zou Huancong, “On the Jurisprudent Basis for Livelihood Security in China,” Nanjing Journal of Social Sciences 4 (2010): 120.

 

36. Wang Guanghui, “Constitutional Analysis of the State Liability for Providing for the Elderly,” Jinan Journal (Philosophy and Social Sciences) 3 (2020): 94.

 

37. Jin Jinping, “The Selection of the Organization Forms of Providing Basic Public Services”, 64.

 

38. Léon Duguit, Manual of Constitutional Law, translated by Wang Wenli et al. (Shenyang: Chunfeng Literature and Art Publishing House, 1999), 6-12.

 

39. Ernst-Hasso Ritter, “An Examination of the Relationship between the State and the Economy in Cooperative Countries”, 16.

 

40. Yu Jianxing, “China’s Public Service System: Developments of Social Policy, Institution and Mechanism,”Academic Monthly 3 (2011): 6.

 

41. Jin Jinping, “The Selection of the Organization Forms of Providing Basic Public Services”, 16.

 

42. Zhan Guobin, “Theoretical Mechanism of the Tertiary Sector and Features of Its Running System,” Journal of Ningbo University (Liberal Arts Edition) 1 (2006): 121.

 

43. Yu Jianxing, “China’s Public Service System: Developments of Social Policy, Institution and Mechanism”,7-13.

 

44. He Yanling, “Phenomenon of Swing-type Enforcement on Land in China and its Explanation,” Chinese Journal of Law 6 (2013): 61.

 

45. Fang Jie, “On the Sharing of Public Administration Tasks by Associations and Their Legitimacy,” Zhejiang Academic Journal 3 (2020): 117.

 

46. Fang Jie, “Interpretation of ‘Public Services’ Organized by the Third Sector from the Perspective of an Administrative Law System”, 138.

 

47. Xing Hongfei, “On the Guarantee Responsibility of the Government in Procurement of Public Services,”Studies in Law and Business 1 (2022): 149.

 

48. Hu Minjie, “On Public Law Liabilities in Government Purchasing Contracts of Public Service,” China Legal Science 4 (2016): 145.

 

49. Luo Meiying, “Governance by Contract: Universal in Utility Franchise Contract,” Zhejiang Academic Journal 2 (2010): 132.

 

50. Civil Judgment of Wenzhou Intermediate People’s Court of Zhejiang Province, (2018) Z03 MZ No. 23.

 

51. Yuan Shuhong, “Service-modeled government Calls the Transition of Public Law,” China Legal Science 3 (2006): 54.

 

52. Civil Judgment of Tianjin No. 2 Intermediate People’s Court, (2017) J02 MZ No. 6577.

 

53. Mike Feintuck, The Public Interest in Regulation, translated by Dai Xin (Beijing: China Renmin University Press, 2014), 88-89.

 

54. Henry Rothstein, Michael Huber and George Gaskell, “A Theory of Risk Colonization: The Spiraling Regulatory Logics of Societal and Institutional Risk,” Economy and Society, vol. 35, no. 1 (2006).

 

55. An Yongkang, “Risk-based Regulation: Calibrating the Regulation of Food Safety in China,” Administrative Law Review 4 (2020): 137.

 

56. Yu Jianxing and Chen Kejian, “Why the Welfare State Needs the Philanthropic Sector?” Journal of Zhejiang University (Humanities and Social Sciences) 1 (2016): 69.

 

57. Huang Xiaochun, “Non-synergetic Governance and Strategic Response: A Theoretical Framework on Chinese NGOs’ Autonomy,” Sociological Studies 6 (2014): 118.

 

58. Ibid., 121.

 

59. “Insufficient charity” means that social organizations cannot produce sufficient and reliable resources like market organizations, and often have greater dependence on external resources. See Lester M. Salamon, Partners in Public Service: Government-Nonprofit Relations in the Modern Welfare State, translated by Tian Kai (Beijing: The Commercial Press, 2008).

 

60. Jin Jinping, “On the Non-profit Legal Persons as Commercial Subjects,” Research on Rule of Law 3 (2021): 61.

 

61. Fang Jie, “Interpretation of ‘Public Services’ Organized by the Third Sector from the Perspective of an Administrative Law System”, 139.

 

62. Zhan Guobin, “Theoretical Logic, Internal Conflict and Risk Control of Public Service Outsourcing”, Comparative Economic & Social Systems 5 (2011): 151-152.

 

63. Huang Xiaochun, “The Institutional Environment and the Development of Contemporary Chinese Social Organizations,” Social Sciences in China 9 (2015): 160.

 

64. Huang Xiaochun, “Non-synergetic Governance and Strategic Response: A Theoretical Framework on Chinese NGOs’ Autonomy”, 121.

 

65. Wang Jie, Zhu Zhiwei and Kang Jiao, “The Third Sector Failure and Its Governance under the Background of Government Purchasing Public Services,” Leadership Science 32 (2018): 29.

 

66. Chen Fangfang and Yang Cuiying, “A Study on Public-funded-private-run Operational Model of Elderly Care Institutions from the Perspective of the Government Responsibility — A Case Study of Shanghai,” Social Security Studies 4 (2019): 11.

 

67. Zhan Guobin, “Theoretical Mechanism of the Tertiary Sector and Features of Its Running System,” 154.

 

68. Peng Jing and Zhang Ruli, “How to Prevent Government’s Purchase Services from Becoming Unsatisfactory Gifts of the Public? — An Analysis in the Perspective of Governmental Responsibility,” Journal of Minzu University of China (Philosophy and Social Sciences Edition) 1 (2018): 60.

 

69. Yu Shaoru, “On the Principle of State Subsidiarity in Administrative Payment,” 58.

 

70. Zhang Xiang, “The Benefiting Function of Basic Rights and the State’s Paying Obligation,” China Legal Science 1 (2006): 24 .

 

71. General Comment No. 3: The Nature of States Parties’ Obligations (Paragraph 1, Article 2 of the Covenant), HUMAN RIGHTS.CN, accessed December 20, 2022.

 

72. Li Rui: “On the Public Service Supply Rights and Liabilities Allocation,” China Legal Science 4 (2019): 140.

 

73. Yu Shaoru, “On the Principle of State Subsidiarity in Administrative Payment,” 58.

 

74. Wang Xu, “On Risk Precaution of State Constitutional Obligation,” Studies in Law and Business 5 (2019): 117.

 

75. Zhao Hong, “The Institutional Development and Theory Evolution of the Administrative Privatization in Germany,” Journal of National Prosecutors’ College 5 (2016): 116.

 

76. Ibid., 115-116.

 

77. Xu Guochong, Zhang Chenzhou and Guo Xuanyu, “Chinese-style Government Regulation: Characteristics, Dilemmas and Trends”, Administration Reform 1 (2019): 76.

 

78. Yang Binglin, “From Government Regulation to Regulatory Governance,” Journal of CUPL 2 (2018): 104.

 

79. Jin Jinping, “The Selection of the Organization Forms of Providing Basic Public Services”, 22.

 

80. Yang Binglin, “From Government Regulation to Regulatory Governance”, 98.

 

81. Ibid., 101.

 

82. Jonathan Chaplin, “Subsidiarity and Social Pluralism,” Global Perspectives on Subsidiarity, page 74.

 

83. Fang Jie, “Interpretation of ‘Public Services’ Organized by the Third Sector from the Perspective of an Administrative Law System”, 139.

 

84. Wang Shizong and Song Chengcheng, “Independence or Autonomy: A Reflection on the Characteristics of Chinese Social Organizations”, Social Sciences in China 5 (2013): 56.

 

85. Chen Wufeng, “The Dilemma and Breakthrough of Chinese-style Administrative Supply: Based on an Investigation of the Relevant Norms for Private Senior Care Institutions,” Oriental Law 2 (2013): 119.

 

86. He Yanling and Wang Guanglong, “China’s Transitional Order and Its Institutional Logic”, 56-57.