我国长期护理社会保险的保障范围及其规则构造  

The Coverage of Social Insurance for Long-Term Care in China and Its Legal Construction

作　　者：谢冰清 Xie Bingqing

机构地区：[1]中南大学法学院

出　　处：《环球法律评论》2024年第1期124-140,共17页Global Law Review

摘　　要：厘清长期护理社会保险的保障范围,是构建这一全新制度的前提与基础。长期护理社会保险旨在预防护理需求这一独立的社会风险,可从积极与消极两个层面来建构长护险的抽象保障范畴。具体的保障范围应从外部和内部两个维度来界定,即保险给付与其他相关社会福利给付之间的边界及关联以及制度构建的规范要素。长护险应当以维系基本尊严生活为目的,提供涵盖生活照料与医疗护理两个面向之保险给付,并区别于医疗保险给付、残疾人保障给付、养老保险以及工伤保险等。长护险保障范围的规范构造涉及权利主体、保险标的、给付内容与保障程度等核心内容。可确定60周岁以上老年为第一类被保险人,40-59周岁的医疗保险被保险人为第二类被保险人,以预计可能持续6个月以上并达到一定严重程度的护理需求作为保险标的,提供服务给付为主、金钱给付为辅的保险给付。Long-term care social insurance aims at preventing the independent social risk of care needs.Taking this risk as the subject matter of insurance,the abstract coverage of long-term care insurance can be constructed from the positive and the negative aspects.The needs for long-term care that affect daily life and health to a certain degree of severity are covered while those that do not cause a burden on survival and damage to health are excluded.The specific coverage can be defined in terms of the external dimension and the internal dimension.The external dimension refers to the boundaries and connections between insurance benefits and other related social welfare benefits,while the internal dimension includes the determination of the subjects of the right,the coverage of protection and its realization.The risk of care needs is related not only to the derogation of freedom,dignity and other fundamental rights caused by the inability to take care of oneself,but also to the cost burden on the individual and the family resulting from the care needs.As far as the former is concerned,long-term care insurance aims at guaranteeing the quality of life and health as well as the basic dignity of the person in need of care.Such insurance benefits are different from health insurance benefits and disability benefits.As far as the latter is concerned,long-term care insurance aims at preventing the risk of over-expenditure rather than insufficient income for families with care needs,thus distinguishing itself from income replacement insurances.The legislation on long-term care insurance coverage involves three core elements:subjects of the right,subject matters of the coverage and insurance benefits.The subjects of rights guaranteed by long-term care insurance include the insured and the beneficiary.It is recommended that,at the initial stage of the implementation of the system,the group of the elderly over 60 years of age should be the first type of the insured,with premiums deducted from individual pension accounts;and the gro

关 键 词：护理需求 长期护理保险 保险范围 保险给付 

分 类 号：D922.182.3[政治法律—宪法学与行政法学]