解析“以房养老”制度的困境——兼及法律移植的现代性反思

The Analysis on the Institutional Predicament of “House-of-Pension”Scheme —Touching on the Reflection of Modernity about Legal Transplantation

"以房养老"作为一个借鉴和移植域外制度的立法,一经出台便引发人们的广泛关注和批评,乃至否定"法律移植"本身。在中国"以房养老"制度推行受阻的原因主要来自三个方面,首先是"养儿防老"的传统价值观,其次是土地所有权制度以及不稳定的房地产市场,最后是越发凸显的社会信任危机。然而,"法律移植"在当今中国仍然是一种不可避免的立法选择,它在中国现代性法律制度秩序构建中有助于人们观念的革新与塑造。归根结底,"法律移植"频频出现"水土不服"的原因在于现代性制度秩序建构所必须具备的理性精神的缺失。而解决这些问题的一个重要途径就是引入现代市场机制。在培育理性精神、恢复社会信任方面,一个开放自由的市场既能迫使行为人对自身的行为进行理性计算,也能唤醒人与人之间真诚的道德意识。

As borrowed and transplanted legislation from extraterritorial legal system,"House-of-pension"scheme has drawn widespread attention and criticism since it was released,and even"le-gal transplantation"itself has been denied.There are mainly three reasons why the implementation of the"House-of-pension"scheme is hindered in China.First and the foremost reason is that the tradi-tional values of having their children against old age.The next reason is that the land property system and the unstable real estate market.And the last reason is that sharply increasing trust crisis."Legal transplantation",however,is still an inevitable legislative choice for China today.It helps people re-new and shape their ideas during the construction of legal system and order of modernity.After all , the reason why"legal transplantation"often suffers acclimatization is the lack of the spirit of rationali-ty which is necessary for the construction of legal system and order of modernity.And the introduc-tion of modern market mechanism can be a significant solution.An open and free market is able to force people to speculate their behavior rationally as well as awaken sincere morality of all mankind in terms of cultivating rational spirit and restoring social trust.