中国社会保险立法进路之分析——中国社会保险立法体例再分析

Improvement of Social Insurance Legislation:Restatement of the Style of the Social Insurance Law in China

社会保险法在社会保障法体系中处于核心地位,我国社会保险立法不能满足社会保险实践的需要。提交全国人大会常委会审议的《社会保险法(草案)》立足于中国国情但过于迁就现实;体现了行政优位的理念但欠缺公民社会保险权保障的理念;立法的总体思路明确但不具有完整的基本原则;立足于职权立法但过于频繁地授权立法;奠定了社会保险各方主体的关系框架但疏于对法律关系的梳理;具有明确的导向性但缺乏可操作性;追求利于权力运行的秩序但公平与效率价值缺失。立法先行是社会保险得以产生的明显特征。选择立法体例的关键是看其是否适合该国的需要。单行立法是社会保险立法体例的主流。社会保险法理想的立法体例应为综合立法体例,但我国制定综合性《社会保险法》的条件尚不成熟。我国可以继续《社会保险法》的立法进程,对于《社会保险法》之外的五个社会保险项目的单项立法次序安排,应以养老保险法和工伤保险法为先,医疗保险法、失业保险法和生育保险法为后。

While social insurance law is deemed the kernel of the social security legal regime, the Chinese social insurance legislation is still less considered, the consequence of which is that it fails to meet the practical demands. The Draft of the Social Insurance Act under the deliberation of the Standing Committee of the National People＇ s Congress, though based on the specific situations of the state, make too much compromise with realities. It embodies the notion of supremacy of administration but fails to express the idea of protection of citizens＇ social insurance rights. The general legislative line is explicit but the basic principles are not comprehen- sive. Though based on primary law, it stresses too much on secondary or delegated legislation. It has established a framework concerning all the relevant parties in social insurance affairs but has not clarified their legal relationship. It has apparent guiding features but is hard to operate. It seeks for the order to secure exercise of power but fails to take into account of the values of justice and efficiency. In short, legislation is the key element to establish social insurance and the arrangement of legislation depends on whether it will satisfy the demands of the state. While social insurance law normally takes the form of parliamentary acts, the ideal model should be a ＂synthetic one＂ that incorporates other legislative styles. Since China has no condition to make multi-styled social insurance law, we may proceed making our Social Insurance Act. As for enactment of the other five social insurance acts （apart from the Social Insurance Act）, they should be arranged in the order of priority as the Pension Act, Workers Compensation Act, Medical Insurance Act, Unemployment Act and Maternity Act.