权利的法与社会维度:基于老年人精神赡养权的分析

The Law and Society Dimension of Rights: An Analysis of the Right to Mental Support of the Elderly

老年人精神赡养权属于特定群体权利。从法律社会学的视角看,精神赡养权的产生与实现与特定时空下的社会环境有着密切关系,包括社会生产生活方式的改变使得子女与父母在家庭中的关系变得个体化,以及传统孝道的伦理约束力减弱。因应精神赡养权产生的背景,其实现不能仅凭立法和司法保障,还应该从孝道和社会整体的制度安排着手。然而,目前无论是立法、司法救济,还是社会制度、资源的整体安排,对这项权利都缺乏足够充分的回应能力。未来应着眼于从国家与社会、立法与司法、社会伦理与整体环境的角度进行设计、调整。一是进一步完善精神赡养立法中的义务规定;二是针对性设计适应老年人的司法救济;三是通过国家制度对赡养福利做出安排;四是厚植权利的社会伦理和社会氛围。

The emergence of mental support for the elderly has profound reasons in law and society. For the elderly, when economic support and daily care are no longer the most difficult problem, mental support is becoming an ever-increasing necessity.The right to mental support of the elderly is among the rights of specific groups, which is a justified necessity, emerging as a mental need after the material needs are satisfied for the elderly. From the perspective of law and sociology, the emergence and realization of the right to mental support are closely related to the social environment during a specific time and space. There are also social reality and social ethics elements in the legislation and jurisprudence of the right to mental support for the elderly. First, the change of social production and lifestyle makes the relationship between children and parents in the family individualized;Second, the ethical binding force of traditional filial piety is weakened. The legitimacy foundation of law is that it keeps pace with the times and responds to the needs of social reality. In the past, China’s law put more emphasis on the offspring’s obligation to provide material support for their parents, but long ignored the legal protection for the mental support, which, with the ambiguity in its content and subjectivity in its evaluation, was not an urgent need of the elderly. Therefore, it is extremely necessary to confirm in law the right to mental support of the elderly and provide timely remedies when this right is violated. The right to mental support is an inevitable result of social development, whose realization depends on further development of the society. However, at present, this right has not been responded to whether in terms of legislation and judicial remedies or the overall arrangement of social institutions and resources. We should make plans and adjustments from the perspectives of the state and society, legislation and justice, institutional arrangements and social ethics, and the atmosphere of participation. First, in terms of legislation, it is necessary to further specify the subject of obligation who provides mental support, as well as the ways and reasonable extent of obligation fulfillment to prevent mental support disputes. Second, judicial remedies adapted to the elderly should be designed including mediation-dominated settlement of mental support disputes, public interest litigation of mental support, flexible application of rules of evidence, establishment of family courts, flexible enforcement, etc. Third, support welfare should be established through the state system. At the national level, there is also a need to consider the matching system design of support welfare in the future, so as to effectively reduce the support cost, encourage children to live together with the elderly parents or live nearby, and promote the harmony of intergenerational relations. This facilitates the protection of the elderly’s right to mental support. Fourth, the social ethics and social atmosphere of rights should be cultivated. It is necessary to activate and amplify the emotional component of filial piety, enhance social cohesion and promote the participation of all sectors of society in meeting the mental needs of the elderly. In conclusion, the realization of the right to mental support, in light of its background, cannot depend on legislative and judicial protection alone;the filial piety and the overall institutional arrangement of society should also be taken into consideration. Only in this way can the right to mental support of the elderly in China be truly guaranteed.