Abstract
This work will examine the issue, which is both universal and topical, of solidarity between generations, focusing on forms of financial and material mutual support within family, as well as collective redistribution, realized by state social security systems. In contemporary demographic, social and economic contexts, we are facing new legal questions, as well as rediscovering and reexamining classic issues, in the field of pension law, family law, social law. Ultimately, through these separate legal questions, the respective roles of State (public) solidarity and family (private) solidarity need to be reconsidered and reconfigured. Comparative and comprehensive analyses of the way that different countries answer these contemporary questions about solidarity between generations in civil, social and public law give us some clues to tackle this complex and challenging issue.
We would like to thank Julie Zambau, research engineer at CNRS and director of documentation centre of COMPTRASEC, as well as Tomoyo Sato, undergraduate student of Sophia University, for their precious help in the realization of this work.
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Notes
- 1.
(In alphabetical order) Belgium, Brazil, Cameroon (Virginie Yanpelda), China, Czech Republic(Ondřej Horák, Jana Boulaouad), Finland, France, Germany, Greece(Helen Rethymiotaki), Hungary, Italy, Japan, Singapore, South Africa, Spain(Gabriel García Cantero), United Kingdom “England and Wales”. Among the authors of these national reports, 12 authors participate to this book (Above indicated are the names of authors who don’t contribute to this book but had edited national reports for the general congress).To edit this first chapter, we have examined all the national reports of above mentioned 16 countries as well as the chapters which had been updated or newly edited (in the case of Spanish law) after the congress. We will try to distinguish these references in mentioning ‘national report’ when we would like to refer to the reports which had been edited at the occasion of congress, and ‘chapter’ when we would like to refer to the updated or newly edited version for this volume. We try to refer to the latter when it is possible. We have also added several elements by ourselves, in that case in directly indicating their sources.
- 2.
The issues which will be treated in this report are relevant primarily for developed welfare states with an aging population. The issues of environmental law are theoretically important in both developing and developed countries, though the debates on these issues are more or less active in different countries.
- 3.
- 4.
Boissard (2014).
- 5.
Without going into too much detail, there is some controversy about the political usage of this concept, particularly in France and the French academic community. See Minonzio (2004), p. 8.
- 6.
- 7.
- 8.
The fertility rate in Cameroon is still around 4.63 in 2015, although it has decreased from 6 in 1976. The younger generation (0–24 years old) makes up more than 60% of the nation’s population.
- 9.
See the chapter about Singapore in this volume.
- 10.
Within the European Union, this three-layer model is considered somewhat standard, even though there are some exceptions, such as the French pension system. See Del-Sol (2014), p. 627.
- 11.
The French ‘Code de la sécurité sociale’ has been changed recently to declare that the pay-as-you-go pension schemes is at the center of the social pact which unites generations and the goal of this pay-as-you-go system is to create solidarity across generations (Code de la Sécurité Sociale, L. 112-2-1). See Camaji in this volume.
- 12.
Kasagi (2020).
- 13.
We can mention Singapore and South Africa as examples of countries that have this kind of pension system. See Chungu and Kalula in this volume about the solidarity which can nevertheless be identified in the pre-funded pension schemes.
- 14.
Brazil is one of the rare exceptions. See note 17.
- 15.
Italy (reform of 2009), Brazil, Czech Republic, England and Wales, South Africa. In Japan, tax based universal and basic pension benefits have no restrictions on combining pension benefits and work. For the old age employee’s pension insurance, however, there is a certain restriction as we will see later. In the South African pre-funded pension system, it seems somewhat logical that whether a person who can receive pension benefits continues to work or not stays a private matter.
- 16.
It should be noted that in this case (and in the case that the pensioner can work and contribute to the pension system under certain restriction, as we will see later) there is the possibility of revising their pension benefits by taking into consideration the contributions made after liquidation must be considered (that is, whether the pension benefit will be increased once the pensioner stops working). In Brazil, according a recent decision of the Supreme Court (in 2016), once pension benefits are liquidated, the worker cannot waive this pension and claim a new, revised pension, which means the amount cannot be revised (increased) even if the pensioner continues to work and contribute to the pension system. The pensioner contributes to the pension system without any personal return by contributing to the pension system as a whole.
- 17.
One exception is the Brazilian system, which allows those who have contributed for a certain period of time (35 years for men and 30 years for women) to receive pension benefits, irrespective of the retiree’s age. The pensioner can continue working after the liquidation of their pension benefits. Pension benefits are therefore neither defined as ‘retirement pension,’ nor exactly as ‘old age pension’ (at least in today’s context), as one can start receiving pension benefits in one’s 40s. See Shimamura (2015).
- 18.
See Ohta in the volume for details.
- 19.
Cameroon, Greece.
- 20.
The Japanese pension system once required ‘retirement from work’ as one of the conditions for eligibility to benefits. See Shimamura (2015).
- 21.
The following 2013 OECD report indicates this is a general trend of OECD countries. See the ‘editorial’ of the report “Pension at a glance 2013 OECD and G20 indicators”, http://www.oecd.org/pensions/pensionsataglance.htm.
- 22.
As pension cuts are not a crucial question in pre-funded pension systems, we will discuss pay-as-you-go pension systems only. However, we can quickly think on this question for pre-funded pension systems. In pre-funded pension systems, one acquires pension benefits by contributing and accumulating premiums. The individual pension account being separate, it is logical that pension benefits cannot be easily reduced once they are acquired (In South Africa, as explained in national report, pension benefits are considered to be intangible by legal provisions).
- 23.
This can be partly rephrased as a question of the judges’ ability to control lawmakers’ discretion concerning social rights through constitutional and fundamental rights or principles of constitutional value. This question is treated in the following article, which examines the decisions of some European countries in the context of the financial crisis: Roman (2014).
- 24.
Finland, Germany. In Japan, though there is no judicial decision on this topic, certain legal scholars support the protection of entitlement to pension benefit as a property.
- 25.
See Civ.2è 17 avril 2008, n°07-12144 which refers to the Art 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (the decision considers that the decrease of a point value in complementary pension does not represent an unjustified infringement of this article).
- 26.
According Finish national report.
- 27.
PeVL 9/1999 vp, s. 2/I, PeVL 60/2002 vp, s. 2/I.
- 28.
Section 15 of the Finnish Constitution.
- 29.
See Janda in this volume for details. As the chapter shows, the equal treatment principle can also affect the legitimacy of pension reforms.
- 30.
Though we cannot explore this in detail, the protection of the ‘expectation’ of pension rights might and should be distinguished from the protection of pension rights. The principle of legal security can be discussed in relation to this point, as Camaji in this volume examines in detail.
- 31.
This question is discussed in Camaji and Ota in this volume.
- 32.
Art. 23 of the Belgian Constitution. The article guarantees, first of all, a right to have a standard of life respecting human dignity (para.1), which should be specified by economic, social and cultural rights through laws and administrative rules (para.2), including a right to work, a right to social security, a right to protection of health, a right to decent accommodation, etc. (para.3).
- 33.
Art. 36(1), as well as Art. 38(2).
- 34.
Judgement no. 70 of 2015 on April 30, 2015.
- 35.
Art. 36, para. 1 (Workers have the right to a remuneration commensurate to the quantity and quality of their work and in any case such as to ensure them and their families a free and dignified existence) and Art. 38 para. 2 (Workers have the right to be assured adequate means for their needs and necessities in the case of accidents, illness, disability, old age and involuntary unemployment) of the Italian Constitution.
- 36.
The 2011 reform stopped the automatic adjustment (indexation) of pensions over 14,000 euros per month.
- 37.
About this decision, see Bergonzini (2016), p. 177.
- 38.
Art. 2, paragraph 1 of the Greek Constitution.
- 39.
Art. 4, para. 5 of the Greek Constitution.
- 40.
Art. 25, para. 1 of the Greek Constitution.
- 41.
Art. 25, para. 4 of the Greek Constitution.
- 42.
According to the Belgian Constitutional Council and the Conseil d’État, standstill obligation is violated only when the reduction of benefits is significant. Conseil d’État 23 septembre 2011, nr. 215.309,20, Conseil d’État 6 décembre 2011, nr. 216. 702, nr. 33. See Alofs and Van Limberghen in this volume for the detail.
- 43.
Judgment No. 223 of 2012. According to this decision, the government can adopt exceptional measures in a serious financial crisis to reconcile (1) the need to stabilize the budgetary situation and (2) the need to guarantee services and rights for individuals according to the constitutionally entrenched principles of equality.
- 44.
CE, 26 mars 2010, n°323201. See Chap. 5 of this volume. In Japan, while there is no judicial decision on this point, the government raises the argument of intergenerational justice to justify pension cuts. See page 37 of the Japanese national report.
- 45.
See the Greek and Italian cases cited above.
- 46.
According to the decisions of the German Federal Constitutional Court, this adjustment period can protect the legitimate expectation that we have mentioned above.
- 47.
In England, what is called the ‘triple lock’ principle was a political promise of the coalition government formed in 2010, which ensured that state pensions would increase by the highest of the increase in earnings, the increase in prices (as measured by the Consumer Price Index) and 2.5%. This principle recently provoked a controversy. See Chap. 10 of this volume and Crawford et al. (2016).
- 48.
This rate was fixed at 62% in 2014.
- 49.
The total pension of a male worker who has worked for 40 years for the average male worker’s salary.
- 50.
See Janda in this volume about for details on the concept of ‘sustainability’.
- 51.
See particularly Camaji and Ohta in this volume.
- 52.
See Bergonzini (2016).
- 53.
For more details, see Maldonado Molina in this volume.
- 54.
Ota (2000), p. 120.
- 55.
Yamawaki (1997) p. 78.
- 56.
See Art. 7 of the UN Convention on the Rights of the Child.
- 57.
Even though other relatives can also play a very important role in supporting elderly people who are in need.
- 58.
Germany, Cameroon, Belgium, Spain, Czech Republic, Singapore, Hungary, Brazil, Japan, South Africa, Italy. However, the effectiveness of these obligations should be carefully examined, as adults are often reluctant to ask for the support of their family when this support is not volunteered. See the Belgium report on this point.
- 59.
We can see a typical example in Japan where doctrine and case law clearly distinguish two types of support duties by giving them different names and definitions. Concerning obligations of parents toward minor children, as well as obligations between married persons, the provider must assure the claimant the same standards of living as their own (so called obligation to maintain) without any other condition than family relation. For other types of relations, support duty is less demanding, the provider should help only when the claimant is in need and the provider can afford to do so (so called obligation to help).
- 60.
In Hungarian law, the claimant of support should not be ‘unworthy’ of maintenance. When it comes to adult children’s obligations toward parents, if the parent fulfilled his or her obligation to maintain and care for the child and to provide for his or her upbringing, the child cannot allege unworthiness except in the case where there is proof of extreme misconduct of the parent against the child. Section 4: 194 (2) and (3) of the Hungarian Civil Code. In French family law, according art. 207 of the Civil Code, the judge can ‘supprimer ou diminuer (eliminate or reduce)’ support obligations, in cases where the claimant has not fulfilled his own obligations (a typical example of this is a parent who had not cared for his child). Bénabent (2016), p. 498.
- 61.
In German doctrine, support obligations between parents and children are considered to be based on a relationship of reciprocity across different generations. This reciprocity can therefore limit, as well as justify the support obligations. Hilbig-Lugani (2013), p. 763.
- 62.
Cour de Cassation, 6 mai 1987, 5796.
- 63.
Section 4:194 (1) of the Hungarian Civil Code. Belgian law excludes support obligations between adult family members only when the condition of the person in need has been caused deliberately.
- 64.
Finland, England, Greece.
- 65.
See the following report published in France on the initiative of the French Sénat: Étude de législation comparée n° 189 - octobre 2008 – L’obligation alimentaire envers les ascendants.
- 66.
See the following website: https://sso.agc.gov.sg/Act/MPA1995.
- 67.
See the Singaporean national report.
- 68.
Except the Public Assistance Scheme.
- 69.
Lee (1995), p. 671.
- 70.
This grant is a part of a comprehensive public housing program, common in Singapore. See for example Phang and Helble (2016), pp. 174–209.
- 71.
Here again, the abandonment of the minor child by the parents by blood breaks the legal relationship of family and therefore exempts the child from the obligation to support the parents.
- 72.
Minonzio (2004), pp. 7–19.
- 73.
Maisonnasse (2013), p. 747.
- 74.
When the resources of the applicant is appreciated by unit of household and not individually, support duty is actually imposed on all persons in a same household, even those who do not have support duty according to Civil Law. See Sayn (2005), p. 16. We observe a similar situation in Japan.
- 75.
Sayn (2005), p. 11.
- 76.
Brazil, Germany, Belgium, South Africa, France. See Art. L. 132-6 of the French Code de l’action sociale et des familles.
- 77.
Theoretically speaking, this situation could be independent from support duty and a result instead of the fact that the means test is executed at household level. See note 75. See also Kesteman (2011), pp. 219–226. As for the French personalized allowance for autonomy (allocation personnalisée d’autonomie), the very application of this principle is excluded. See L. 232-24 of the Code de l’action sociale et des familles. However, it should also be noted that the APA does not, in general, impose a strict means test for the attribution of allocation. Therefore, French scholars do not consider the APA as a ‘social minimum benefit’ in its classical form. Martin (2015), pp. 768–776. About the detailed analyses of the treatment of support duties in different social security and welfare schemes, see Sayn (2005).
- 78.
France, Belgium, Japan. In Japan, public assistance administrators must also notify family members who will take on the duty to support public-assistance recipient before they make the decision to start public assistance when there is a strong possibility that the administrators will claim such payment later (Clause 8 of Article 24 of the Public Assistance act and Clause 2 of Article 2 of the Regulation for Enforcement of the Public Assistance Act).
- 79.
Sayn (2005).
- 80.
There are only 551 reported cases of attempt of recovery, 0 judicial action from year 2010 to 2012. See the document by the Ministry of Internal Affairs and Communications: http://www.soumu.go.jp/main_content/000305399.pdf.
- 81.
See the Belgian report for the details. The following article points out a similar problem in France: Kesteman (2011), p. 222.
- 82.
It should be noted, in some countries and under certain circumstances, civil law recognizes (or is interpreted to recognize) the obligation of family members to welcome the other member in their place of residence as a part of their support duties (France, Japan and Belgium, for example).
- 83.
See Sloan (2015), p. 275.
- 84.
It is clear that though the third and fourth sections deal with questions that should be legally quite distinct, in reality, these two questions cannot be separated, as the cost of LTC can drive elderly people into financially difficulty, which can then raise an issue about support duties of family members.
- 85.
Furthermore, as we will see, there is often a gap between what is officially declared as social policy direction and what is really happening. Even when state responsibility for LTC is officially indicated, the family can continue to play a dominant role if the system remains insufficient in practice. A report on the role of family in the care and support of elderly people argues that the level to which each legal system and national policy is family oriented can be appreciated by the evaluation of the abundance of social measures for elderly people. It also points out that the radical way to appeal to family solidarity toward elderly people is not to introduce social measures for them. Sayn (2006).
- 86.
See also Martin (2011) about the situation in European countries including those we don’t examine in this chapter.
- 87.
Brazil, Greece, Italy, Cameroon, South Africa, Hungary, Singapore.
- 88.
For the detail, see Wang in this volume.
- 89.
In Hungary, public intervention is not inexistent (the Social Welfare Act (1993)), but not universal, and very limited in quality and quantity of services. Particularly, the direction of policy changed in the late 2000s to reduce public intervention and to shift the burden of care to families. The 2011 reform of the Constitution, which imposes a duty of caregiving on families, has confirmed this trend from a legal point of view. See Sczéman (2015), pp. 245, 247, 248 and 250.
- 90.
中华人民共和国老年人权益保障法.
- 91.
Art. 18, para. 2 of the law.
- 92.
Art. 18, 1st para.
- 93.
For Germany, see the “Gesetz zur Neuausrichtung der Pflegeversicherung.” Germany reduces the contribution for LTC social security of the citizens who are raising (or have raised) one or several children. For Japan, see ‘Kaigohokenho(Long-Term Care Insurance Act)’ and Curry et al. (2018).
- 94.
For example, England and Belgium. In England, lawmakers intended to substantially lighten the means test with the 2014 Care Act. However, this part of the 2014 reform has later been delayed and scrapped. For Belgium, see Belgian ‘Allocation pour l’aide aux personnes âgées, APA’.
- 95.
In the Czech Republic, it is estimated that approximately 80% of care is provided by the family, mainly spouses, children and other relatives. Sowa (2010), pp. 15–16.
- 96.
Public opinion also varies significantly from country to country regarding the idea that children should pay for the care of their parents if their parents’ income is not sufficient. In the two candidate countries support is most widespread (88% in Turkey and 86% in Croatia). Greece is the only EU member state where over three-quarters of the public agree (78%). Conversely, there is strong opposition to this idea in Denmark (86% disagreeing) and Sweden (84% disagreeing), with Finland and the Netherlands not far behind with 77% disagreeing. So, support for the idea that close relatives should care for dependent people even when it means sacrificing their careers ranges from only 7% in Sweden to 77% in Turkey. (Special Euro Barometer, European Commission, Health and long-term care in the European Union, 2007).
- 97.
As a majority of these carers are female, this question could also be examined from the perspective of female workers’ work and life conditions, as well as from a gender perspective more generally, though this report will not be able to discuss these perspectives in depth.
- 98.
See for example Recommendation n. R98(9) of the Committee of ministers to member States adopted on 18th September 1998, during the 641th meeting of Ministers’ Deputies, mentioned in Rousset (2015).
- 99.
See chapters on Finland and England (9 and 10) where government intention is relatively obvious. In England and Wales, around 5.8 million informal carers and the majority of elderly people who need care are in their own homes and receive care from family members.
- 100.
See also Rousset (2015), pp. 96–98.
- 101.
This measure exists, for example, in Germany, Japan, Spain, England and Wales. In other countries, like the Czech Republic and Belgium, while there is no specific mechanism for the worker taking care of the family member in need of LTC, there is working leave when the family member needs to be accompanied for medical treatment or examinations. About the support for informal carers in Spain, see Blázquez Agudo E-M et Quintero Lima (2014), pp. 115–134.
- 102.
Art. 18 of the ‘Law about protection of the interest and the rights of aged persons’. See also Kwang-jun (2014), p. 43.
- 103.
In this law, employers also have to supervise the children’s obligation to go back to their family and care for their aged parents, as well as to sanction those who do not carry out this obligation.
- 104.
This kind of measure exists, for example, in Germany, France, Czech Republic and Spain. About the French system, see I. Sayn (2006), p. 52. On the contrary, in England, the care recipients are not allowed hire their family members, including their children, when they are living in the same household (see Care and Support (Direct Payments) Regulations 2014 SI No 2871 for the exact conditions) in the Direct Payments Scheme (a system which allows care recipients to directly hire their care givers). About the Czech Republic’s ‘care allowance’, see Wija (2015), pp. 233–244. According to this article, in Czech Republic, ‘Care allowance presents a significant, often the only, source of income for informal carers, although the allowance is not primarily intended as a reward for informal caregivers but rather as income support for care recipients, enabling them to buy professional social services’. (p. 240).
- 105.
In Finland, as well as in England and Wales. As we can see in chapter 9, the caregivers of adults (including handicapped adults) in Finland can receive some allowance for informal care (act on support for informal care). The allowance can be accepted if a person is taken care of at his or her home and the care is especially demanding and binding. The municipality has some discretion in the decision of the amount of the allowance. This allowance entails a considerable expense (The expense for this allowance amounts to 2.8 billion euros, compared to 5.2 billion euros in total for the services for old people and disabled people), despite the limited number of carers who receive it (One in three of informal carers (estimated to be 60,000) do not receive this allowance).
- 106.
In the Czech Republic and in Japan. In Japan, a 2018 reform of Civil law introduced a new ‘claim for special contribution’ in relation to inheritance, which gives a person who is not a heir but has contributed to the care of the late person, a right to claim a certain amount of money (art. 1050 of reformed Civil Code).
- 107.
Sloan (2015), p. 275.
- 108.
See the following report: http://www.jil.go.jp/institute/siryo/2017/documents/186_04.pdf.
- 109.
The carers (recognition and services) Act 1995, the carers and disabled children act 2000, the carers (equal opportunities) Act 2004.
- 110.
The ‘Close caregiver’ of an elderly person is a concept which covers three categories of people – (1) ‘family caregivers’ (spouse, partenaire in civil union, cohabitant, parent, etc.,), (2) those who live with the person, as well as (3) those who maintain close relation with him. The law recognizes a status of close caregivers to those people when they come to help the elderly person regularly and frequently, in non-professional way, to accomplish all or a part of acts and activities of everyday life (art. L. 113-1-3 of Code de l’Action sociale et des familles).
- 111.
About the details and the limitation of this new legal system, see Rebourg (2018), p. 693. The support for close caregiver was recently reinforced by a new law: LOI n° 2019-485 du 22 mai 2019 visant à favoriser la reconnaissance des proches aidants.
- 112.
See Sloan in this volume.
- 113.
Shimoebisu (2007), p. 223. In Spain, when the public LTC system was introduced, professional care was theoretically favoured over family care, for similar reason. However, the Spanish system attributes a cash benefit for those who receive family care so that the elderly person can pay to family members directly. And also, in practice, family care remains dominant in the Spanish LTC system. When also taking into consideration the cutbacks of the state’s LTC benefit, the system has today almost entirely changed its direction, keeping in reality only a residual role in supporting family solidarity.
- 114.
- 115.
Maisonnasse (2016), p. 748.
- 116.
Although, for China, we have observed rather stronger accent on State’s role in the field of LTC. See 4.1.1.
- 117.
About the tradition of Confucianism in Singapore and about the Maintenance of Parents Act, see Lee (1995).
- 118.
Kwang-jun (2014), p. 33.
- 119.
Sayn (2006).
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Kasagi, E. (2020). Solidarity Across Generations from the Perspective of Comparative Law: Reconfiguration of Different Types of Solidarity in the Context of an Aging Society. In: Kasagi, E. (eds) Solidarity Across Generations. Ius Comparatum - Global Studies in Comparative Law, vol 49. Springer, Cham. https://doi.org/10.1007/978-3-030-50547-9_1
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