我国社会救助正当程序之实践及修正

The Practice and Amendments on Due Process of Social Assistance in China

社会救助正当程序是社会救助管理与服务中有助于实现社会救助公正结果,或与社会救助公正结果有关的程序。近年来,我国逐步建立了社会救助基本操作程序,包括社会救助标准制定与调整程序、家庭经济状况核查程序、社会救助申办程序等。然而,我国社会救助程序未得到足够的重视,现有的程序存在瑕疵,基层自由裁量权没有得到有效规制,没有建立回避、救助返还等制度。救助程序不完善,不利于保护申请人和救助对象的程序性权利,进而影响到他们的实体性权利,同时导致救助政策目标偏离,产生错保、漏保等现象。建议国家加快制定《社会救助法》,或单独制定《社会救助程序规则》,通过立法完善救助程序。

The Due Process of Social Assistance is the process of which contributes to realize or associate with the fair results of social assistance, In recent years, China has initially established a series of operational process of social assistance, including the formulation and adjustment process of social assistance policies, the process of household means test, and the application process of social assistance. However, the process of social assistance has not been attached great attention; the existing process still has flaws; the discretion of grassroots has not been regulated effectively; and the rules of avoidance and assistance return has not been built up, etc. The imperfection of assistance process will go against protecting the procedural rights of applicants and recipients, and then affect their substantial rights ; meanwhile, it will also lead to the deviation of social assistance policies＇ targets, and even make mistakes or oversight on the applicants and recipients. Thus, we suggest China should accelerate the formulation of Social Assistance Law, or establish the Regulations of Social Assistance Process separately, so as to improve the social assistance process by legislation .