论我国长期护理保险制度试点中的争议问题与理论回应

伴随人口老龄化,家庭护理已难以满足失能老人的照护需求。为此,“十三五”规划提出“探索建立长期护理保险制度”,“十四五”规划建议进一步要求“稳步建立长期护理保险制度”。部分地区已开展试点工作,但是对于参保对象、基金筹集、保险待遇等核心问题试点不一。就参保对象,存在覆盖全民与仅面向老年居民之不同制度设计;就基金筹集,各地对于个人、单位及政府是否负担筹资义务规定不一;就保险待遇,各地对于给付对象、给付方式及给付标准规定不同。对家庭、单位、国家的职责定位以及对弥补家庭护理能力不足的路径选择,是构建长期护理保险制度的基础。基于平等原则、补充性原则,我国应建立覆盖全民、以参保人自行筹资为主体的长期护理保险制度。面对家庭护理能力之不足,立法应兼采支持劳动力回归家庭与护理社会化的应对路径,同时设立实物与现金给付方式,建立护理假等配套制度。     

About the authors

We have reached what may be an important turning point in the development of criminological thought and of social policy toward crime. The “conservative revolution” in criminology has lost considerable credibility, along with the entire set of minimalist strategies toward the disadvantaged that dominated social policy throughout much of the recent past. A space has opened for the development of a “social environmental” or “human-ecological” approach to crime, which combines a variety of interventions on the individual and family level with an array of broader policies aimed at controlling the social and economic forces that place individuals, families, and communities at risk in the first place.     

The Shadow Price of Social Change and Its Evaluation

This paper analyzes the “shadow price” of social transformation. For the first time, an attempt was made to determine the approaches to measuring this value with regard to nonmarket phenomena and processes, and to apply these approaches in an empirical analysis, based on a representative survey in Russia (N = 1,000) using experimental situations.

Specifically, it quantitatively evaluates (1) the degree of divergence between the real and the ideal structure of the time budget of several important domains of social life; (2) the ratio of social ills to social benefits; (3) individual public welfare functions; and (4) the social cost, legitimated by citizens, of reproducing two fundamental public goods: “the capacity to maintain ‘superpower’ status” and “the well-being of the future generations.”

The authors introduce and operationalize the novel concept of the socially suboptimal product of labor, that is, the product resulting from alienated (or unwilling) labor, and conversely, the product that could potentially result from using unutilized willing labor. In doing so we support the idea of distinguishing productive and unproductive forms within both the notion of labor and the notion of leisure. Aggregated estimates of these values show the share of gross domestic product (GDP) that could be optimized due to a redistribution of the time budget of the population between the main areas of life, according to ideal social preferences.

The balance of social benefits and social ills resulting from the life experiences and activities of individuals is empirically evaluated. We consider this balance, which is the sum of impacts of the social environment on the individual, as a suitable model for explaining how individuals make decisions about whether or not to participate in public life.

“Individual public welfare functions” are assessed empirically, demonstrating that individual utility depends on personal and collective consumption. Empirical testing covered a wide range of nation-building areas with public investment in relevant types of merit and public goods.

Then the authors propose and test on empirical data an opportunity cost approach to evaluating socially legitimate amounts of funding for the fundamental social benefits “superpower” or “additional power” of the nation.

The cost of the public good “well-being of the future generations” is calculated for the Russian sample.

Finally, the estimates of the discount rates of human lives and “healthy and prosperous years of life” were obtained for Russia for the first time.

The findings of the study are relevant for the efficient management of complex socioeconomic systems. The authors strongly believe that revealing the structure of existing social preferences and estimating their impact on various areas of social life will help improve policymaking by explicitly taking into account the specifics of the real social contract between the state and society.     

The family strategies concept: An evaluation of four empirical case studies

In this article, the preceding case studies are evaluated from the perspective of the family strategies concept. The studies have yielded new insights in the relationship between the family and the labor market and in the labor allocation within families. In addition, they have shown the tensions between individual life plans and collective needs. It has been difficult, however, to reach firm conclusions about which strategies were deployed by families. One of the problems is that the motives of the family members remain hidden. In addition, our databases need to be more finely tuned to the strategies concept. In particular, we know too little on the range of (strategic) options of families in the past.     

Understanding intra-family inequalities: The Montes de Pas,Spain, 1700–1900

This article deals with the family organization of labor in a peasant community in Northern Spain during the eighteenth and nineteenth centuries. It uses this case study to review some of the assumptions with which peasant family history is being written, namely, the idea that from historical evidence of family members “working together,” a vision of families as cooperative, i.e., egalitarian units, can be deduced. Contrary to this idea, the article argues that coresidence cannot be taken as an indicator of equal economic status for all family members. The article proposes a method to identify inequalities between family members, based on a comparison between each member's working contribution to the household and access to family resources, including income generated by each member's own work.     

Structure and strategy. Two rural communities in the Kempen region of Belgium, 1850–1910

This article starts with a methodological question: By carrying out a structural analysis of a local community, is it possible to gain insight into the labor strategies of the families within that community? This structural analysis is based on the reconstruction and integration of population, labor, and income data of individual households within two villages in 19th century Belgium. Basically, this exercise is to understand two sets of correlations: (a) between social differentiation and the family cycle and (b) between shifts in the social relationship between families and generations and the survival strategies of those families. This article shows that a structural approach to labor and income strategies can reveal how and why former strategies can lose their relevance and new choices are made relating to new networks of solidarity.     

For Both Love and Money: Viviana Zelizer's The Purchase of Intimacy

Viviana Zelizer's recent book, The Purchase of Intimacy (2005), presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships—a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer's critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships and then explains her more three‐dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer's approach to transfers of genetic material and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.     

Understanding Suicide Across the Lifespan: A United States Perspective of Suicide Risk Factors,Assessment & Management

Suicide is a troubling, preventable phenomenon. Prior to attempts, individuals often seek help, prompting practitioners to perform risk assessments that ideally use evidence‐based risk management strategies. A literature review was performed using Harvard Countway Library of Medicine, Google Scholar, PubMed. Key words used were “Forensic Science,” “Suicide Risk Management,” “Pediatric Suicide Risk Factors,” “Adult Suicide Risk Factors,” “Geriatric Suicide Risk Factors,” “Suicide Risk Assessment.” Parameters limited articles to studies/reviews completed in the past twenty years in the United States. Results indicated predictors of suicide in juveniles were insomnia, burdensomeness, and recent conflicts with family or a romantic partner. Adults had greater risk if male, substance abusing, with marital/job loss. Elderly individuals with multiple medical comorbidities, hopelessness, and isolation were at higher risk. Everyone evaluated should be screened for access to firearms. Management of suicide risk involves providing the least restrictive form of treatment which maintains an individual's safety.     

Establishing Identity: Documents,Performance, and Biometric Information in Immigration Proceedings

This article explores the politics of identification in immigration proceedings by examining the struggles over family‐based immigration in South Korea in the context of ethnic Korean “return” migration from China. It focuses on micropolitical struggles in bureaucratic settings, analyzing how migrants and immigration bureaucrats struggle to establish kinship and marital status in order to secure or limit migrants' access to the labor market and citizenship. Drawing on fieldwork in both the sending and receiving communities, it shows how migrants and bureaucrats use various types of “identity tags” (official documents, performance, and biometric information) to establish the authenticity of family relations and to accept or reject particular understandings of personhood, belonging, and entitlement. It also highlights the multiple normative orderings that inform migrants' strategies (including their use of “fraudulent” identity) and their implicit or explicit challenge to the criminalizing and stigmatizing view of the immigration state.     

Patriarchy and changing family strategies: Class and gender in the Dominican Republic

This article explores the issue of ideologies of family formation and their influence on the concept of family strategies. It assesses the influence of patriarchal ideas using a historical case study of a rural village in the Dominican Republic as point of departure. The principal focus is the importance of patriarchal ideologies for class and gender relations. The article argues that the analysis of family strategies should take into account the context of class relations in the countryside and the influence of hegemonic ideologies on the gender relations within rural families. These factors led to specific strategies of rural families, but at the same time for diverging and often contradictory attitudes between individual family members.     

Introduction: Structure or strategy? Essays on family,demography, and labor from the Dutch N.W. Posthumus Institute

The concept of ‘family strategies’ has yielded much valuable research when used in the classic ‘quantitative’ and ‘anthropological’ approaches to the history of family life. Its continued use as a research concept requires, however, that significantly more attention be paid to the relationships between families as social units and their individual members, to the great variety of families and households, and to the different motives that guided families in charging strategies. These questions are brought to the forefront when the history of the family is investigated cross-culturally and comparatively, as the articles of this Special Issue, written by researchers of the Dutch N. W. Posthumus Institute, seek to do.     

From a child's point of view: Intergenerational influences on the organization of household and labor

That household strategies bear directly on the lives of individual household members is a much-stated fact. That household strategies have profound long-term effects on the options and choices made by individual household members also has received much less attention. By focusing on intergenerational relations within the context of households, this article brings to light certain long-term effects which household relations have on the lives of adult children in terms of the organization of their domestic and laboring lives. The article shows that the decisions pertaining to household organization and development of labor strategies are heavily influenced by individual, personal evaluations of the quality of long-term moral and emotional relations across generations.     

From a child''s point of view: Intergenerational influences on the organization of household and labor

That household strategies bear directly on the lives of individual household members is a much-stated fact. That household strategies have profound long-term effects on the options and choices made by individual household members also has received much less attention. By focusing on intergenerational relations within the context of households, this article brings to light certain long-term effects which household relations have on the lives of adult children in terms of the organization of their domestic and laboring lives. The article shows that the decisions pertaining to household organization and development of labor strategies are heavily influenced by individual, personal evaluations of the quality of long-term moral and emotional relations across generations.     

Social rationalization of living and housework in Germany and the United States in the 1920s

Because the idea of economic rationalization found its strongest promoters in the US and Germany during the 1920s, it makes sense to compare the two countries and to ask how the idea of economic rationalization was transferred into other areas of society, such as the private sphere of families and their homes. The article draws comparisons in a number of different areas, such as housing policy, the education of taste, domestic cleanliness, and the structure of reformers' ideas. In both countries special associations and journals were founded to instruct housewives, and reformers idealized a “classic” family pattern that centered on individual households with gender division of labor but fewer children. The social rationalization of people's daily lives in both countries was not an easily accomplished process, nor was it carried out sucessfully in all the areas targeted by reformers.     

国家治理现代化视阈下的法律、道德与组织规范关系

国家治理现代化须以系统完备、科学规范、运行有效的规范体系为基础。而法律、道德和"组织规范"共同构成现代社会的规范体系。因而,高度重视"组织规范"并正确处理好它与法律道德的关系,就显得十分重要。"组织规范"具有民间性、自主和自治性,有权制定并实施"组织规范",约束组织本身及其成员的相关行为。这些"组织规范"上承法律下接道德,但又不是照抄照搬,而是依"法无禁止即可为"原则独立存在。在中国继续深化改革和努力实现国家治理现代化的背景下,有必要重新认识三大基础规范的关系,从而有效发挥"组织规范"的作用,构建良好社会秩序。     

You Got What You Deserved

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” (co-authored by George C. Thomas); “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration.     

Bestialitatis and the New Ethics on “Human” Animals

This article discusses how the legal systems in several Western countries, with a special focus on Italy, address our present day animal rights movement and how these legal systems can faithfully reflect the movement’s values as well as promote them in a manner that will ultimately change the rights themselves and their cultural context: this is an extremely interesting issue for the semiotic study of the “humanization of animals”. Therefore, I will summarize several semiotic arguments using the model of the four ontologies by Philippe Descola and the concept of prospectivism by Eduardo Viveiros De Castro. I expect several important changes will come about thanks to the ties between philosophical animal rights discourse and legal discourse and I also believe that the two most interesting issues will be animal labor and reproduction. I will concentrate on the debate over zoophilia laws in Denmark, Germany and Italy in order to propose a way to understand the threshold which separates humans and animals in our naturalistic ontology. Nowadays, “becoming animals” and “becoming humans” seem to be two central and open-ended semiotic processes: legal rights and animal rights philosophy help bring several issues into focus such as animal subjectivity and informed consent.     

Mobilizing the Law in China: "Informed Disenchantment" and the Development of Legal Consciousness

This article critically examines the development of legal consciousness among legal aid plaintiffs in Shanghai. It is based on 16 months of research at a large legal aid center and in‐depth interviews with 50 plaintiffs. Chinese legal aid plaintiffs come to the legal process with high expectations about the possibility of protecting their rights; however, they also have only a vague and imprecise knowledge of legal procedure and their actual codified rights. Through this process of legal mobilization, plaintiffs' legal consciousness changes in two separate dimensions: changes in one's feelings of efficacy and competency vis‐à‐vis the law, and changes in one's perception/evaluation of the legal system. Put another way, the first dimension is “How well can I work the law?” and the second is “How well does the law work?” In this study I observe positive changes in feelings of individual efficacy and competency that are combined with more negative evaluations/perceptions of the legal system in terms of its fairness and effectiveness. The positive feelings of efficacy and voice provided by the legal process encourage labor dispute plaintiffs in the post‐dispute period to plan new lawsuits and to help friends and relatives with their legal problems. Disenchantment with the promises of the legal system does not lead to despondency, but to more critical, informed action. This study provides new evidence on the nature of China's developing legal system with a focus on the social response to the state‐led “rule of law” project.     

民法诚信原则与劳动法适用之博弈论纲——以“奋斗者协议”和“自愿弃保”为例

"奋斗者协议"与"自愿弃保"案件背后隐含的法理可简概为民法诚信原则与劳动法适用问题。实践中的误读和误判、《民法典》缺失劳动权(益)之基本民事权利设置、共享经济下新型劳动用工和疫情与后疫情时代之多重叠加效应,导致了劳动法之"衰"与"殇"。民法诚信原则同样适用劳动法含社会保障法,所谓劳动法不能适用该原则或者民法思维模式都是不严谨之"伪"命题。劳动法适用诚信原则应当考量其特殊性,惩戒权适用时,应当遵循比例原则和有利原则,并不得涉及劳动者非职业行为即私人行为和排除社会保障权。任何排除或剥夺劳动者社会保障权的约定或规章都是无效的。后劳动合同义务适用诚信原则不能"选择性""遗漏"抗辩权,如果当事人依法行使抗辩权,则不能裁定其违反了诚信原则,否则就是"伪"民法思维模式。实习关系属于特殊的劳动关系,在实习法律规范严重缺失下,用具有弥补法律不足之价值与功能的诚信原则治理"虚假实习"完全必要而且可行。     

From both sides now: informed consent, organ transplantation, and family-based disclosure

Drawing on the legal and social development of the right of individual patients to give informed consent to medical treatment, this article explores some implications of heroic life-saving measures in medicine that are made possibly by unprecedented advances in medical technology. Talcing cardiac transplantation as its primary example, the article examines the broader effects, both short-term and long-term, on family members as well as on the patient of this and similar types of heroic treatment. The author then offers a novel legal theory: where the heroic measure holds the risk of serious or life threatening changes, not just for the patients themselves but for their intimately connected family members as well, those members ought to have a legal right to participate in the informed consent process. The author sketches the contours of such a right and defends it in the face of various objections that may be made to it. I've looked at life from both sides now from win and lose, and still somehow it's life's illusions I recall. I really don't know life at all. (“Both Sides Now,” on Colors of the Day: The Best of Judy Collins, Electra Records 1972)