政府购买居家养老服务合同若干问题思考

Thoughts on Several Issues about Home-based Care Service Contract Based on Government Procurement

政府购买居家养老服务合同,从合同性质上看,属于行政合同。在合同订立后,政府方、养老服务提供方、老年人各自的权利、义务和责任应予厘清。在合同的实际履行中,行政机关享有知情权、监管权、评估权等权利,负有给付服务费用的主要义务,违反该义务的,应承担相应责任;养老服务提供方享有服务费用获取权等权利,负有提供居家养老服务的主给付义务,违反该义务的,应承担相应责任;老年人作为接受社会养老服务机构提供的居家养老服务的受益人,享有直接要求社会养老服务机构提供居家养老服务的请求权,原则上不负担义务,除非以实现合同履行为必要,否则有悖于基本的法理。

Home-based care service contract from government procurement essentially belongs to the administrative contract. After the conclusion of the contract, the respective rights, obligations and responsibility among government, the home-based care service provider and the aged people must be clarified. In the actual performance of the contract, the administration enjoys the right to know, the right to oversee , the right to evaluate, and also bears the principal obligation of the service charge payment. If the obligation is violated, the relevant responsibility is to be undertaken. Similarly, the home-based care service provider enjoys the right to obtain the service charge and bears the main payment obligation from the home-based care service provision. The aged people as the beneficiary who accept the home-based care service provided by the social service agency for the elderly naturally enjoy the right of claim to directly demand home-based care service. They theoretically undertake no obligations at all unless there are some necessities in order to achieve the contract performance, otherwise it goes against the fundamental legal principle.