Abstract
By 2014, the number of the elderly (aged 60 or above) in China has been over 212 million, and China has been aging with its largest aging population around the world. As population ages, the state is confronted with the question of how to care better for the elderly citizens. China has established and implemented specific laws and policies in order to meet the needs of the aging population during the past decades. However, the fast growth and imbalanced development of the aging population has brought new challenges to China. In 2013, the newly revised Law of the PRC on Protection of the Rights and Interest of the Elderly became effective. In law and practice, the rights of the elderly have not obtained enough protection yet, and there are still many problems: legislations are scattered and not systemic, weak practical operability, and lack of further research on the related issues of the elderly.Current research studies on elder law have covered many issues on the aging population, such as social security, pensions, medical care for elderly, basic theories of elder law and some specific rights of the elderly. However, these legal studies are still limited in breadth and depth. Specifically, these studies on the specific elder rights appear scattered and incoherent, and a clear and complete elder rights system as a basic theoretical framework is still missing.
This dissertation attempts to answer how legal system shall be structured and reformed to ensure senior citizens the enjoyment of the rights and interests. It is developed to deconstruct and analyze the central theme in three parts: the rights of the elderly, the obligations of the caregivers, and legal paths toward realizing the elderly rights. As regards methodology, this dissertation is mainly developed in a normative-doctrinal research way, which adopts a Western doctrine, narrative analytical framework, to describe and study Chinese law and system. Besides, whenever dealing with specific issues, the analysis also adopts a comparative perspective.
After reviewing the current Chinese elder law system, the focus of the dissertation is mainly placed on the role of the elder law and its contribution to governing the aging population in China from the perspective of right-duty relation of elder care.
Initially, the dissertation reviews the legal identification of the elderly and discusses the role of the elder law and policy in elderly care. Elderly individuals possess two identities: “senior citizens” and “older family members.” Their caregivers have specific different obligations to accommodate various needs of the elderly in each of their dual roles. The dissertation system analysis of elder rights protection is developed within the contexts of both public law and civil law. It attempts to study elderly rights from a new perspective, which is based on the characteristics and real needs of the elderly themselves rather than the needs of state governance. In this elderly-need-based perspective, the dissertation provides sensible and practical examinations with the purpose of reconstructing and achieving elderly rights protection in China.
Secondly, in the following chapters, it redefines and classifies the rights and interests that the elderly shall enjoy, and clarifies the obligations of the caregivers in different elder care relationships. Compared to previous research studies, this dissertation pays more attention to the deep analysis of the interactions between different elder care relationships. Particularly, the dissertation explores different content in detail related to elderly rights while operating under two roles, as well as illustrating the interlinked and mutually supportive relationships among different caregivers in the practice. Based on this analysis, elderly rights are recognized and reaffirmed with a deeper understanding of the elderly group examined for the dissertation. At the same time, this dissertation discusses how future elder law should put a higher value on the interactions and cooperation among different categories of caregivers when identifying the obligations of responsible caregivers. Therefore, with the revised right-duty relation of elder care, it will provide a more targeted approach to tackling the problems of current elder law.
Finally, based on research and analysis, the dissertation provides suggestions in relation to elder law reform. While dealing with the increasing needs of elder care, the functions of support and encouragement of elder law would play a more important role in practice than its functions of legal intervention and compensation in the course of elder rights protection. Specifically, the dissertation lists several constructive suggestions to improve the legal protection of elderly rights and relieve the increasing pressure of elder care, especially in judicial practice. Further, it also provides new ideas on the development of elder law, with which aid future elder law in providing a more comprehensive protection for the elderly and their families. The elder law is not only for providing protection to the elderly to enable them to enjoy their old-age security fully, but it is also for promoting and ensuring that the elderly and their families can deal with aging actively.
In this connection, the dissertation aims at making a certain contribution to the solution of the problems of current elder law and specifically, providing suggestions on elder right protection in Chinese situation.
| Date of Award | 22 Jul 2016 |
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| Original language | English |
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| Supervisor | Guobin ZHU (Supervisor) |