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Modernization of Legal Regulation of the Social Protection System in Kazakhstan within the Context of Implementing the Experience and Standards of the OECD Member States

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The monograph proposes an analysis and critical understanding of the Kazakhstani and foreign social protection legislation and law enforcement practice, the study of the experience of the OECD, scientific perspectives on certain issues of social protection, and ultimately, the search for approaches to strengthening legal protection in the event of social risks in Kazakhstan. The book is intended for lawyers, sociologists, political scientists, economists, representatives of public administration, as well as a wide range of readers interested in social protection issues. The monographical research was funded by the Scientific Committee of the Ministry of Education and Science of the Republic of Kazakhstan (Grant No. AP 05131681).
Бурибаев, Е. А. Buribayev, Ye. A. Modernization of Legal Regulation of the Social Protection System in Kazakhstan within the Context of Implementing the Experience and Standards of the OECD Member States: monograph / Ye. А. Buribayev, Zh. А. Khamzina. - Мoscow : PRIMEC Publishers, 2020. - 172 с. - ISBN 978-5-91292-337-1. - Текст : электронный. - URL: https://znanium.com/catalog/product/1976008 (дата обращения: 08.12.2023). – Режим доступа: по подписке.
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YERMEK A. BURIBAYEV

ZHANNA A. KHAMZINA







MODERNIZATION OF LEGAL REGULATION OF THE SOCIAL PROTECTION SYSTEM IN KAZAKHSTAN WITHIN THE CONTEXT OF IMPLEMENTING THE EXPERIENCE AND STANDARDS OF THE OECD MEMBER STATES


Monograph









Moscow

PRIMEC Publishers


2020

УДК 369 : 346(574)
ББК 65.272
Б91

The monographical research was funded by the Scientific Committee of the Ministry of Education and Science of the Republic of Kazakhstan (Grant No. AP 05131681)

Reviewers:
      A.        R. Bizhanova, Doctor of Juridical Science, Professor of the Chair of “Jurisprudence” of the Abai Kazakh National Pedagogical University.
      B.        M. Koshpenbetov, Candidate of Juridical Science, Associate Professor of the Chair of “Jurisprudence” of the Abai Kazakh National Pedagogical University.


      Buribayev, Ye. A., Khamzina, Zh. A.
Б91 Modernization of Legal Regulation of the Social Protection System in Kazakhstan within the Context of Implementing the Experience and Standards of the OECD Member States: monograph / Yermek А. Buribayev, Zhanna А. Khamzina. - Moscow: PRIMEC Publishers, 2020. - 172 p.


ISBN: 978-5-91292-337-1 doi: 10.18334/9785912923371








ISBN 978-5-91292-337-1

          © Ye. А. Buribayev, Zh. A. Khamzina, 2020 © Typography, cover design LLC Publishing House “PRIMEC Publishers”, 2020

                CONTENTS





Abbreviations.......................................................5
Introduction........................................................7
     Chapter 1.       Opportunities for Modernization of Social Protection Parameters in Kazakhstan.......................10
     Chapter 2.       The Dignity of an Individual as the Highest Value being the Basis for the Right to Social Protection.................31
     Chapter 3.       Social Protection and Gender Equality in Kazakhstan: Gaps in the Legislation and Opportunities..........................45
     Chapter 4.      Social Protection for the Poor................58
     Chapter 5.       Subsistence Level as an Indicator of assessing the Level of Social Protection Guarantees..........................75
     Chapter 6.       The Basic Pension should Become a Universal Social Pension.........................................87
     Chapter 7.       Accumulative Pension System of Kazakhstan: an Attempt to implement the Chilean Experience....................100
     Chapter 8.       Minimum Social Protection Standards: a View from Kazakhstan............................................119
     Chapter 9.       Proposals on the Ways to transform the Social Protection Standards of the OECD States into the Legislation of Kazakhstan................................134
Conclusion........................................................155
References........................................................160

      The monograph proposes an analysis and critical understanding of the Kazakhstani and foreign social protection legislation and law enforcement practice, the study of the experience of the OECD, scientific perspectives on certain issues of social protection, and ultimately, the search for approaches to strengthening legal protection in the event of social risks in Kazakhstan. The book is intended for lawyers, sociologists, political scientists, economists, representatives of public administration, as well as a wide range of readers interested in social protection issues. The monographical research was funded by the Scientific Committee of the Ministry of Education and Science of the Republic of Kazakhstan (Grant No. AP 05131681).
      Keywords: OECD, social security, social protection, pensions, benefits, social insurance in Kazakhstan

                Abbreviations





     TSA - Targeted Social Assistance
     PP - State Basic Pension Payment
     GDP - Gross Domestic Product
     RK CC - Civil Code of the Republic of Kazakhstan (General part) dated December 27, 1994, Civil Code of the Republic of Kazakhstan (Special part) dated July 1, 1999, No. 409-I
     SSIF - State Social Insurance Fund
     USD - US dollar
     UAPF - Unified Accumulated Pension Fund
     LPP, Law on Pension Provision - Law of the Republic of Kazakhstan dated June 21, 2013, No. 105-V "On the Provision of Pension in the Republic of Kazakhstan"
     UNCEDAW - United Nations Committee on the Elimination of the Discrimination Against Women
     MW - Minimum Wage
     ILO - International Labor Organization
     MLSPP, MLSPP of the RK - Ministry of Labor and Social Protection of Population of the Republic of Kazakhstan
     UN - United Nations
     MPC - Mandatory Pension Contributions
     OECD, the Organization - Organization for Economic Cooperation and Development
     P. - Paragraph

5

     SL - Subsistence Level

     Sp. - Subparagraph
     UNDP - UN Development Program
     RK - Republic of Kazakhstan
     Art. - Article
     Tg - Tenge
     NE - National Emergency
     SDG - Sustainable Development Goals
     UBI - Universal Basic Income

                Introduction





     The relevance of this research is determined by the interests of the state and society in the qualitative consolidation and regulation of social rights in the modern legal system and public relations. The formation of social policy for the medium term is based on the Strategic Development Plan of the Republic of Kazakhstan until 2025, according to which, Kazakhstan is aimed at achieving socio-economic and institutional development at a level not inferior to the OECD member states, and subsequent accession to the OECD. The tasks are to ensure social welfare, minimum social standards, to develop the pension system, social insurance, to strengthen the targeting of social assistance, and to modernize the social service system.
     Since 2011, the RK Government has been working on the accession of Kazakhstan to the OECD. Membership in this organization provides access to the best practices of public administration and the implementation of advanced standards. The accession of the Republic of Kazakhstan to the OECD implies bringing the norms of national legislation in line with the standards of the organization.
     Having declared joining the OECD group of the most developed countries by 2050, the government of Kazakhstan is obliged to take steps to modernize and reform in such sectors as public administration, environmental protection, fiscal policy, education, and health. Human rights and social protection are among the most important issues of improvement and reform.
     According to the state policy in Kazakhstan, the reforms to implement the OECD standards in all areas of management, including in the field of social protection of the population, are in demand and inevitable. In recent years, the area of social legislation in Kazakhstan has undergone fundamental changes, the system of relevant normative legal acts has 7

become more qualitative and effective as a result of unification, and implementation of organizational reform to ensure guaranteed social protection of the population. Significant reforms are expected in the period up to 2025.
     The rule-making process in the field of social protection is continuous, and social legislation remains one of the most mobile branches. The norms of state-guaranteed social benefits increase annually in proportion to the growth of the monthly calculation index or the subsistence minimum. At the same time, the final level of social payments assigned is still far from the standard of living and does not correspond to the satisfaction of basic human needs.
     Kazakhstani legal science lacks sufficient scientific, theoretical, and practical bases for decision-making, when forming the directions for the development of social protection legislation. We can state a disharmony between sufficient evidence and the facts that form the basis of the decisions made. Given the weak relationship between science and the functioning of public administration in all spheres of public relations, the latter is, in our deep conviction, not effective, both in terms of evaluating results, using funds, and solving existing problems of society, nonfulfillment of social requests. The formation of conceptual directions for the development of domestic legislation implies the involvement of the expert scientific community in this process. The monograph has studied this direction and formulated separate methodological approaches to improving the social branch of law.
     Significant opportunities for implementing generally recognized standards of social human rights in the OECD states in the domestic law of Kazakhstan remain outside the attention of the legislator and the government.
     The OECD working bodies prepare and distribute the results of statistical collections and research on economic, social, and environmental

8

issues, as well as generate ideas and draft conventions, recommendations, guidelines, and standards, which are subsequently agreed upon by all members of the organization. The reviews are based on measuring the status of five parameters: forecast, analysis of risks and vulnerabilities over the life cycle to determine social protection needs; identification of existing social protection schemes and gaps in coverage; assessment of the adequacy, fairness, and effectiveness of the social protection system; assessment of fiscal policy and financing of social protection; assessment of social protection institutions and their compliance with national policies and other areas of public administration.
     Such country reviews are aimed at forming recommendations and proposals for the states wishing to join this organization. The monograph is based on the conclusions of the reviews and projects made by the OECD bodies within the framework of the implementation of the country program of Kazakhstan in 2015-2017 (Kazakhstan, 2015).
     Besides, the analysis is based on a synthesis of the conclusions of the main OECD acts in the social sphere: Recommendations of the Council for Gender Equality in Education, Employment, and Entrepreneurship (05/29/2013), Recommendations of the Council on Aging and Employment Policy (12/14/2015), Recommendations of the Council on Integrated Mental Health, Skills, and Work Policy (12/14/2015), and Recommendations of the Council on Global Events and Local Development (05/30/2018). Recommendations are legal documents of the OECD, which are not legally binding; they express the obligations assumed by the member states, determine the direction of national policy, and are the parameters for the development of relevant areas of public relations. The OECD bodies assume that the member states of the Organization will take all the necessary measures to implement the provisions of the Recommendations.
     This work meets the modern demand of the state and society, which is to deepen and improve the quality of social reforms, to further improve 9

the legislation, and to develop economic and social measures aimed at building a welfare state in Kazakhstan with a social protection system that meets the standards of the OECD states.




                Chapter 1. Opportunities for Modernization of Social Protection Parameters in Kazakhstan




      In Kazakhstan, based on the desire and development vector aimed at joining the OECD, relevant analyses of developments in foreign social legal science, and the experience of legislation of the Organization's member states on social protection are in demand. It should be assumed that the use of foreign experience requires the knowledge not only of the legal norms and models but also of the conditions of the legal systems in which they exist and are implemented. It is necessary to understand how these conditions and legal systems are comparable to ours and are suitable for the use of the borrowed models.
      One of the models being actively implemented is that differences between countries are explained by the legal origin of the country (customary law or civil law tradition). It is argued that due to stronger legal protection of external investors and less government intervention, common law countries have achieved higher levels of economic and social prosperity compared to the civil law countries. To a large extent, this hypothesis has been supported by much empirical data (Charron et al., 2012).
      However, in our opinion, the arguments about the priority of the state structure and the effectiveness of public administration over the theory of legal origin are more convincing. The sustainability and effectiveness of public administration affect primarily the social outcomes of the government, or in other words, "empirical analysis shows that public

10

infrastructure is indeed more influential than legal traditions concerning some institutional variables (formalism, judicial independence, guarantees of basic rights, and case law), as well as some social outcomes (corruption, rule of law, and property rights)" (Charron et al., 2012).
     The effectiveness of the state's social function has very specific measurement parameters: a reduction in the number of people living below the poverty line; a high level of employment; positive demographic dynamics; an increase in life expectancy; and the absence or a minimum number of social and labor conflicts. These are common components that, we believe, first of all, indicate the effectiveness of the state power and the functioning of its institutions.
     In this study, we show that the application of foreign experience in reforming the social protection system for Kazakhstan is to study and implement the best practices and achievements, primarily of European countries that are members of the OECD. Also, the International Labor Organization is the most important generator of universal social welfare standards. Kazakhstan, a member of the ILO since 1993, has ratified a number of its fundamental documents.
     In 2012, the ILO adopted new social protection standards set out in Recommendations No. 202 On Minimum Levels of Social Protection. The recommendations are the basic tools for determining the level of social protection in most OECD states and are relevant parameters for Kazakhstan in order to develop the national social protection system.
     The ILO member states, under their national circumstances, should implement and maintain their minimum levels of social protection, including basic social guarantees, as soon as possible. These guarantees should ensure that people in need have access to basic health services and basic income security throughout their lives, which together provide actual access to the goods and services identified as necessary at the national level.

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