政府购买居家养老服务合同中老年人权益保护问题研究
发布时间：2018-09-07 20:40
【摘要】：随着老龄化问题的日益严重，养老问题成为公众普遍关注的话题，各地政府在积极探索解决问题的方案，居家养老成为理想的养老模式，政府通过购买的方式引入市场竞争机制，与养老服务机构签订合同，实现居家养老服务的民营化。但是在政府购买居家养老服务的过程中存在诸多问题，尤其是老年人的权益保护问题被忽视，这有违政府购买居家养老服务的初衷。因此，本文的写作目的就是保护老年人的合法权益。 本文从相关含义的界定入手，通过对居家养老、政府购买公共服务、服务合同等含义进行归纳和界定，得出政府购买居家养老服务合同的含义，为文章的论述奠定基础。然后运用文献综述的方法对政府购买居家养老服务中老年人保护的有关问题进行概括论述，明确本文要解决的问题。本文运用学科交叉的研究方法，对合同的性质进行界定，明确其行政私法性，进而研究了该合同的公私法律适用的问题，在此基础上，结合“二阶段理论”，阐述老年人通过何种途径获得救济的问题。针对当前老年人监护制度中存在的问题，结合新修订的老年人权益保障法，对完善老年人监护制度提出改进建议，使老年人能够在合理的监护制度下行使自己的权利，维护自己在政府购买居家养老服务中的权益。本文从行政法和合同法两个方面展开论述，明确当前法律中对第三人利益保护的现状，，运用比较的方法，为老年人指明行政法和合同法上的救济途径，重点结合第三人利益合同理论分析政府购买居家养老服务合同中老年人的保护问题，最后针对居家养老服务协议中的问题进行分析，明确协议中老年人应该享有的权利和服务瑕疵的判断问题，同时通过引入举证责任倒置，为老年人的合法权益提供更加有力的保护。 在居家养老服务在全国全面推广的大背景下，本文通过对相关文献资料的归纳总结，以政府购买居家养老服务这一模式为视角展开论述。本文可能的创新点主要有以下几点：首先，针对当前的法规政策最新动向，参照社会学、管理学等非法学资料，结合行政法学理论，以现有法律体系为基础，发现实践中老年人权益保护的问题，在深入分析的基础上，本文提出了老年人监护制度完善、确定老年人权利、明确救济途径、引入举证责任倒置等解决问题的建议。最终在此基础上，构建起老年人权益保护体系。其次，根据政府购买居家养老服务合同的行政私法性质，主张其侧重私法性质，可以适用私法领域中的合同法理论，借鉴合同法中的第三人利益理论，为老年人在该法律关系中获得独立的请求权提供理论支撑。
[Abstract]:With the aging problem becoming more and more serious, the pension problem has become a topic of general concern to the public. Local governments are actively exploring solutions to the problem, and home pension has become the ideal pension model. Through purchasing, the government introduces market competition mechanism, signs contracts with pension service institutions, and realizes the privatization of home pension services. However, there are many problems in the process of government purchase of home pension service, especially the protection of the rights and interests of the elderly is ignored, which is contrary to the original intention of the government to purchase the home pension service. Therefore, the purpose of this paper is to protect the legal rights and interests of the elderly. This paper begins with the definition of the relevant meaning, through the induction and definition of the meaning of home pension, government purchase of public service, service contract and so on, obtains the meaning of the government purchase home pension service contract, and lays a foundation for the discussion of the article. Then the paper summarizes and discusses the problems related to the protection of the elderly in the government purchase of home pension service by using the method of literature review, and clarifies the problems to be solved in this paper. In this paper, the author defines the nature of the contract, clarifies its private administrative law, and then studies the application of the public and private law of the contract. On this basis, combining with the "two-stage theory", this paper defines the nature of the contract by using the method of interdisciplinary research. The problem of how to obtain relief for the elderly is expounded. In view of the problems existing in the current guardianship system of the elderly, combined with the newly revised law on the protection of the rights and interests of the elderly, some suggestions are put forward to improve the guardianship system for the elderly, so that the elderly can exercise their rights under a reasonable guardianship system. Maintain their own rights and interests in the government purchase of home pension services. This paper discusses from the two aspects of administrative law and contract law, clarifies the present situation of the protection of the interests of the third party in the current law, and points out the remedies in administrative law and contract law for the elderly by means of comparison. Combined with the third party benefit contract theory, this paper analyzes the protection of the elderly in the government purchase of the home pension service contract, and finally analyzes the problems in the home pension service agreement. It is clear that the old people should have the right and the judgment problem of the service flaw in the agreement, at the same time, by introducing the inversion of the burden of proof, we can provide more powerful protection for the legal rights and interests of the old people. In the context of the comprehensive promotion of home pension service in the country, this article through the summary of relevant literature, the government to purchase the home pension service as a model for the perspective of the discussion. The possible innovations in this paper are as follows: firstly, according to the latest trend of current laws and regulations, referring to the non-legal information such as sociology, management, and combining with the theory of administrative law, based on the existing legal system, On the basis of in-depth analysis, this paper puts forward some suggestions to solve the problems, such as perfecting the system of guardianship of the elderly, determining the rights of the elderly, defining the relief ways, introducing the inversion of the burden of proof, and so on. Finally, on this basis, the establishment of the protection of the rights and interests of the elderly system. Secondly, according to the nature of administrative private law of the government to purchase the contract for the aged service at home, it can be applied to the theory of contract law in the field of private law, and draw lessons from the theory of the interests of the third party in the contract law. To provide theoretical support for the elderly to obtain independent claim in the legal relationship.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923;D923.8
本文编号：2229359
[Abstract]:With the aging problem becoming more and more serious, the pension problem has become a topic of general concern to the public. Local governments are actively exploring solutions to the problem, and home pension has become the ideal pension model. Through purchasing, the government introduces market competition mechanism, signs contracts with pension service institutions, and realizes the privatization of home pension services. However, there are many problems in the process of government purchase of home pension service, especially the protection of the rights and interests of the elderly is ignored, which is contrary to the original intention of the government to purchase the home pension service. Therefore, the purpose of this paper is to protect the legal rights and interests of the elderly. This paper begins with the definition of the relevant meaning, through the induction and definition of the meaning of home pension, government purchase of public service, service contract and so on, obtains the meaning of the government purchase home pension service contract, and lays a foundation for the discussion of the article. Then the paper summarizes and discusses the problems related to the protection of the elderly in the government purchase of home pension service by using the method of literature review, and clarifies the problems to be solved in this paper. In this paper, the author defines the nature of the contract, clarifies its private administrative law, and then studies the application of the public and private law of the contract. On this basis, combining with the "two-stage theory", this paper defines the nature of the contract by using the method of interdisciplinary research. The problem of how to obtain relief for the elderly is expounded. In view of the problems existing in the current guardianship system of the elderly, combined with the newly revised law on the protection of the rights and interests of the elderly, some suggestions are put forward to improve the guardianship system for the elderly, so that the elderly can exercise their rights under a reasonable guardianship system. Maintain their own rights and interests in the government purchase of home pension services. This paper discusses from the two aspects of administrative law and contract law, clarifies the present situation of the protection of the interests of the third party in the current law, and points out the remedies in administrative law and contract law for the elderly by means of comparison. Combined with the third party benefit contract theory, this paper analyzes the protection of the elderly in the government purchase of the home pension service contract, and finally analyzes the problems in the home pension service agreement. It is clear that the old people should have the right and the judgment problem of the service flaw in the agreement, at the same time, by introducing the inversion of the burden of proof, we can provide more powerful protection for the legal rights and interests of the old people. In the context of the comprehensive promotion of home pension service in the country, this article through the summary of relevant literature, the government to purchase the home pension service as a model for the perspective of the discussion. The possible innovations in this paper are as follows: firstly, according to the latest trend of current laws and regulations, referring to the non-legal information such as sociology, management, and combining with the theory of administrative law, based on the existing legal system, On the basis of in-depth analysis, this paper puts forward some suggestions to solve the problems, such as perfecting the system of guardianship of the elderly, determining the rights of the elderly, defining the relief ways, introducing the inversion of the burden of proof, and so on. Finally, on this basis, the establishment of the protection of the rights and interests of the elderly system. Secondly, according to the nature of administrative private law of the government to purchase the contract for the aged service at home, it can be applied to the theory of contract law in the field of private law, and draw lessons from the theory of the interests of the third party in the contract law. To provide theoretical support for the elderly to obtain independent claim in the legal relationship.
【学位授予单位】：天津商业大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923;D923.8
【参考文献】
相关期刊论文 前10条
1 吴文嫔;;论第三人合同权利的产生——以第三人利益合同为范式[J];比较法研究;2011年05期
2 单体飞;周春华;;行政合同之识别[J];大连干部学刊;2007年08期
3 丁丽红;孙才华;;行政私法合同初论[J];湖北社会科学;2007年09期
4 周江洪;;服务合同在我国民法典中的定位及其制度构建[J];法学;2008年01期
5 孟勒国,蒋慧,黄鹏;论监护的性质及监护人的权益[J];法学;1996年11期
6 张绍华;可撤销行政行为之信赖保护[J];阜阳师范学院学报(社会科学版);2004年05期
7 史学军;张栋磊;;谈服务行政理念下公安行政私法行为之凸显[J];公安研究;2012年02期
8 朱玉知;张雯;;政府购买养老服务的优化治理——基于合同制治理理论的思考[J];改革与战略;2009年01期
9 敬义嘉;;中国公共服务外部购买的实证分析——一个治理转型的角度[J];管理世界;2007年02期
10 杨安华;;西方国家公共服务合同外包研究的进展与趋势[J];甘肃行政学院学报;2009年06期
本文编号：2229359
本文链接：https://www.wllwen.com/falvlunwen/hetongqiyue/2229359.html
