Will Recent Amendment To Chinese Litigation Help Rebalance Country’s Demographics?

oldA recent addition to litigation in China now asks citizens to take care of their elderly parents. Since government-provided assistance for the elderly is limited, older individuals depend on their families in later years; and due to the success of the One Child Policy, usually on the filial devotion of one individual. The nuance requires children see and/or call their parents regularly, granting time off from work for those who need to travel to visit parents. Zintro experts discuss whether this law will help rebalance the demographics of the nation or promote it as an aging society with shrinking manpower in the workforce.

While some believe the new regulations are part of an independent law, Morris Chen, a legal advisor in China, points out that “it actually is a newly enforced amendment to an old law called the Law of People’s Republic of China on Protection of Rights and Interests of the Elderly, which was enacted and enforced in 1996. Last year, for the sake of the rights and interests of the rapidly expanding elderly population in China, the incumbent Standing Committee of the 11th National People’s Congress decided to make an amendment of the law to address some newly developed situations. The amendment is made in last December and formally went into effect by July 1st, 2013.”

Chen explains that “With the rapid development of China in economy, tremendous changes incurred upon its society and other numerous aspects. The expansion of urbanization resulted in extreme shock to the average person’s life and living style. More and more young people who originally labored and lived in rural fields, together with their elder parents, chose to flock into large and middle sized cities, which inevitably led to problems that the Chinese government now has to face and do its best to address.”

“Regardless of how well those young people flocking into cities [do], they are living far away from their home towns,” but “rather than seeing these young people as unwilling to visit parents, it is more convenient to say they are unable to do so. It is de facto not a matter of legal enforcement to address such situation. In this context, a new law or an amendment would hardly address such an issue.”

Furthermore, “the amendment does not take a strict stance.” Chen notes the wording of the amendment, highlighting the use of the word ‘should’ “which indicates that the provisions hereof belong to, legally speaking, ‘advocacy norms.’ An advocacy norm in a law ordinarily presents a kind of advocacy or initiative to encourage people to follow them. One of its outstanding features is that there will be no negative legal liabilities incurred upon breach of such provision, as it does as to an injunctive norm or a prohibitory norm. Alternatively speaking, while adding Article 18 with an advocacy norm, Chinese government and its top legislature are not meaning to force the ordinary people to visit their parents, for the law has no punishments imposed upon those who breach the provisions. Therefore, it is better to be deemed as an initiative than a requirement.”

In conclusion, Morris Chen adds, “In my opinion, we should regard it as one of the government’s good efforts to balance the economy development and the relative lagging social benefits in [China]. In other words, since it is a complex systemic issue that China is facing, there are a variety of aspects that need to be taken into account.”

Ann E. Johnston, who specializes in family law, asserts that “elder care is a two-edged sword.” She explains that “The elderly can be a great resource of knowledge,” but “They also can be a resource drain. This not an issue that a lawyer can solve with a flourish of his/her pen. It is becoming a subcategory of law.”

By Gabriela Meller

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