【作者】 刘灵芝；

【导师】 马新福；

【作者基本信息】 吉林大学 ， 法学理论， 2007， 博士

【摘要】 本文运用马克思主义法理学方法,系统分析论证了作为人权和宪法权利的公民养老权的理论基础和实现机制。通过提出并界定公民养老权的概念、考察公民养老权的历史发展、探讨公民养老权的法律属性以及确认和保障公民养老权的意义,论述了中国公民养老权的正当性,分析了中国公民养老权的权利结构。本文还阐述了中国公民养老权的现状和存在的问题,提出我国应完善立法和健全司法救济制度,以保障公民养老权的实现。公民养老权的实质是生存权。对公民养老权的尊重和保护立基于现代社会的人权理念,它是实质正义观的内在要求,符合社会正义原则。更多还原

【Abstract】 Our era is an era towards the right, an era in which right is much more concerned and respected, and an era in which the discourse of right becomes more public. We are increasingly accustomed to a right-based approach to understand legal issues, to think and solve social problems.The aging of the population is one of the main features of the development of the mankind in the 21st century, and is a very serious social problem which the world is facing. China has entered into the community of the old-age and the aging speed is even faster. The problem of pension has become an overall and strategic problem. From the respective of Jurisprudence, the core of the problem of pension can be attributed to old-age right.The purpose of this article is: from the perspective of Jurisprudence, making the Jurisprudence analysis of the old-age right of Chinese citizen based on the reality that China is facing an era of social transition and has been entering into old-age society. The article analysis the legal character and significance of insurance of old-age right based on defining the concept of old-age right. It also discusses the properness, the right structure and consisting elements of old-age right based on the reviewing of the development history of old age right. The article also researches the status and actual problems of old-age right of Chinese citizen and proposes that the government should improve the legislation and legal relief system to realize the old-age right.The core viewpoints of this article: Old-age right is one of basic human rights. Old-age right belongs to constitutional rights and is one of the civic social rights. Old age right in China refers to existence insurance right, health insurance right, attendance right to the social development, and metal satisfaction right. Old-age security system is logically started with and based on the citizen’s old-age right. Old-age right in China possesses its justifiability because of the moral support and the protection of the institutionalized form. The essence of old-age right is that people have the survival right when they are old. Respecting and prospecting the old-age right is the inherent requirement of the substantive Justice and is coincidental with the principle of social Justice. It is based on the basic human right conception of pursuing and maintaining the people’s freedom and dignity.The innovative viewpoints of this article:First, the article researches old-age right in China from the respective of the theory of right on Jurisprudence for the first time. The article raises and defines the concept of old-age right and discusses the characters, legal attributes of it. The article argues that old-age right bears the characters of human right and constitutional right.Second, the article discusses the properness of old-age right in China. The article argues that Chinese tradition of culture and the formal insurance of the present rules is the institutional and moral basement of the properness of old-age right. In the article, the theory of social law, the theory of social justice, and the theory of continuable development are used to prove the justification to offer old-age right in China.Third, the article analyzes and expounds the structure and constitutive elements of old-age right of Chinese citizen. It also discusses the right subjects of rights and obligations, the main contents of the right and the object of the right.Forth, the article analyzes the statues and problems of age-old right of Chinese citizen. It also discusses the security system and actionability of the right and offer suggestions on how to perfect the judicial relief system.The article has six chapters (besides the introduction and conclusion):The introduction contains three parts. The first part demonstrates the background and the academic and practice significance of the topic of this article: old-age right of Chinese citizens. It discusses the problem of old-age right from the respective of Jurisprudence and right. It is reflected that the old-age right is a matter-of-course right when people get old and is an obligation if the government, the society and the members of families. The second part concludes and criticizes the status of old-age right in China. It points out that the research of old-age right from law respective is getting deeper, but not enough. The essential method of law protection is from the respective of right. In order to research old-age right from a higher level, it is necessary to research it from respective of right, and human right. It is an obligation of the time of right for academic law to pay attention to old-age problem. The third part briefly introduces the research methods, core point and logic of demonstration and builds the structure of this article. The first chapter: general principles of old-age right of Chinese citizen. Firstly, the concept of old-age right in China is set up. The article discussed the relationship between the old-age right in China and some other rights, namely citizen’s qualification right, equality right, right of existence, right of social insurance, labor right. Secondly, the article discusses the legal characters of old-age right. It argues that old-age right belongs to human right and constitutional right. At last, the article discusses the significance of confirming and protecting old-age right. It argues that the most efficient method to protect old people’s existence, health and taking part in the social development. Besides that, the method of right protection is stable and continuable, which could make old people feel being respected.The second chapter: the historical development of people’s old-age right. The article discusses and criticizes the historical development of old-age right both in China and in western countries. It pointed out that the old-age system in western countries could bring us reference and apocalypse.The third chapter: the justification of old-age right in China. First, the article discusses the culture tradition basement of the justification of old-age right in China. The Chinese traditional culture of filial piety is regarded as the moral basement of the justification of old-age right in China. Secondly, the theory of social law, the theory of social justice, and the theory of continuable development are used to prove the justification to offer old-age right in China. The Social Right, which extends the state’s obligation citizens and which means to keep the citizens away from dread and shortage. The protection of old-age right is a basic requirement of social justice. The substance of old-age right is the right of existance when people get old. The insurance of living and health of old people is a basic requirement of the social justice and a part of the continuable development of the society. The article argues that on the level of institution, old-age right in China possesses justification because of the insurance of legal system.The forth chapter: the structure of old-age right of Chinese citizen. The subjects of old-age right in China are citizens over sixty. The obligation bodies are state (i.e. government), society, family and citizens themselves. Citizens, as obligation subject, refers to the people who bear the aging insurance fee. The basic content of the right is existence insurance right, health insurance right, attendance right to the social development, educated right and metal satisfaction right. The objects of the right are represented physically as living maintenance, home and mentally as careness and gratification.The fifth chapter: the status of old-age right in China. Firstly, the article analyzes the status on old-age right in Chinese urban and rural area. Secondly, the article analyzes the problems of old-age right in China, that is, the faultiness of legislation and institution. At the same time, the system develops unevenly in China because of the dual economic structure. The economic structure in China is divided into two units: urban and countryside. Besides that, some other problems existed as well. The faultiness of law leads to the systemic loss of old-age right. The comedown of traditional culture of filial piety leads to the comedown of the concept of old-age right.The sixth chapter: realization of age-old right of Chinese citizen. Firstly, the article discusses the enjoyment and realization of old-age right in China. It points out that legal right is a static, possible and objective right. The confirmation and declaration of people’s right by the law only provides a precondition for the people to enjoy the right and obtain the benefits contained in the right. In order to fulfill the perfect status of human right, the legal right has to be transformed into actual right through perfect system, proper and effective methods. The realization of old-age right in China is to transform the right from legal right to actual right. Secondly, discusses the countermeasure to the development of old-age right in China. It points out that we should build up and perfect a new model of old-age insurance, conform the existing methods of aging, build up a uniform aging insurance system both in urban and rural areas step by step, and an social aging service institution is our development goal. Thirdly, the article discusses the old-age right insurance system in China. The article discusses the legal status of Chinese old-age right and how to perfect it. It also analyzes the actionability of Chinese old-age right and how to perfect the legal relief system on old-age right in China. At last, the article argues that there should be a necessary limitation on old-age right in China. The balance between private profits and public profits should be considered. The realization of old-age right in China should be adapted for the development level of the social economy.更多还原