A Study On Application Of Administrative Coercive Measure In Health Sector

From the drafting of the "Administrative Enforcement Regulations" in 1988, to 2011, the 21 st meeting of the NPC standing committee passed the Administrative Enforcement Law, China’s administrative compulsory legislation has experienced a long 24 years. Although the process full of ups and downs, the establishment of this law marks in the field of administrative law troika molding. In the development process of "Administrative Enforcement Law",the people have learned the lessons of the past, and many of the problems in the field of administrative enforcement were forced to legislative norms, for example standardize administrative enforcement set right; administrative enforcement measures shall not delegate authority; specify the relative concentration of administrative compulsory measures, etc. These are the bright spot of the law.As the basic law of the administrative law framework, promulgation and the implementation of the law is one of the symbols of the rule of law sound, will certainly to promote our country under the rule of law in the field of compulsory administrative, and administration according to law, to perfect the socialist legal system. At the same time, we should realize that the promulgation of the new law will inevitably accompanied by the emergence of new problems, and the solution of these problems is likely to be a new opportunity for promotion of appropriate practice and theory. Health has always been a big problem in the field of people’s livelihood, so compulsory administrative problems in the field of health has a high research value and significance. In daily learning process for administrative enforcement, the author found some legal norm in the field of health and the compulsory administrative law exist discrepancy, so the initiation to comb, part of the specification in the field of health and try to do some tentative analysis and suggestions.Specific to this article, the author plans to depart from the text and enforcement practices, two perspectives, to research the specification problem of administrative compulsory measures in the field of health. The body of the article is divided into three parts. The first part is combing the health laws and regulations and departmental rules and the stipulation and the analysis of its legal or not.After the compulsory administrative law enacted, there is conflict or discomfort between it and some of the health law, the provisions of administrative rules. On the basis of the compulsory administrative legal principles, the author do some inspection on these laws, in the process, at the same time can also find some administrative rules violate host law rules.In the search process, I found that most of the existing laws and regulations are consistent with the legislative principles of the "administrative enforcement law", and only a small number of laws and regulations provisions has a problem. After completion of the comb, the author summarizes the existing main problems of health regulations and department rules, including the following: 1, the legislation is not unified. The application of administrative compulsory measures in the administrative management is extensive, but the implementing subject, types, procedures and other regulations are a bit cluttered. Some are involved in the laws, regulations or rules, but the lack of unified principle to guide, showed great dispersion and even conflicting, chaos in the implementation process. 2, some compulsory administrative measures is in violation of the compulsory administrative legal principle. In accordance with the provisions of the administrative enforcement law, in the event or impending public health emergencies, administrative organs may adopt emergency measures in accordance with the provisions of laws and regulations or temporary measures.This rule is given in the special period, such as the SARS period. The special legislation is allowed, but the legislation should not violate the basic principles of administrative enforcement law, which means the administrative compulsory measures in general can only be set by law. Take for example the compulsory measures in patients with mental illness in China, the relevant provisions of the "constabulary law" specifies the people’s police may adopt a binding measures for psychiatric patients. In practice, the local civil affairs departments at various levels, health authorities and other government departments are also more or less to participate in medical administrative compulsory measures in patients with psychosis, which makes the implementation of the compulsory administrative measure body too wide. Eventually lead to unclear responsibilities between government departments, and it is difficult to remedy. 4, corresponding programs of compulsory administrative measures exist vacancies. In the process of the implementation of the health administrative compulsory measures, sometimes there will be a restriction of personal freedom, and the most obvious example is the isolation measures for the patient who have infectious diseases or suspected communicable diseases. Due to the isolation measures involves the citizens’ personal freedom rights of the most sensitive, in practice the parties often don’t cooperate with medical institutions. The provisions of the law is the public security organ shall assist medical institutions on the parties to take compulsory isolation medical practices, this will be related to a series of problems about administrative assistance. Unfortunately, now administrative assistance related laws may also be general in the field of the health administrative enforcement, and it is easy to cause enforcement authorities in the implementation process is not standard, the result is often the patient’s rights and interests are violated.The difficulties encountered in the enforcement process by health law enforcement officers are listed in the second part of the article, in two main difficulties. One is to build a relatively concentrated administrative coercive power. Scattered forces lead to low efficiency, and this is our country administrative organ tackling difficult problem for a long time. In order to solve the problem, lawmakers have bothered, draw lessons from the practice more mature system of administrative punishment and administrative licensing. The Administrative Enforcement Law regulated the system of relatively centralized in the field of administrative enforcement. The regulation gives the administrative organ with exercising the relative centralized power related right of administrative enforcement measures. which is in favor of the integration of punishment and coercive power in the law enforcement process, and also improve the efficiency of law enforcement. Of course, the state council has realized that it’s unrealistic to solve serious defects of system by decentralized local legislation, and the reorganization of the law enforcement power is one of the focus of a new round of reform of administrative system. The executive power is more concentrated, the management of fragmentation problem is expected to get a better solution. The second is the understanding of "emergency" in the compulsory administrative law. The compulsory administrative law stipulates in article 18 the administrative subject must report to the administrative authority director before taking the compulsory measures, but then, article 19 requires when emergency situation happened, compulsory measures can be taken first, fill do formalities afterwards. And how to grasp the "emergency" is one of the common concern of the practice department. The author thinks that, as long as administrative personnel are sure that only taking compulsory measures can " stop the illegal act, prevent evidence being destroyed, avoid harm, control the expand of risk", should belong to an emergency, and can take compulsory measures immediately. In order to prevent rights abuse, the compulsory administrative law has made the system design about correction and remedy, namely report within 24 hours and fill do formalities, and cancel the wrong compulsory measures immediately. Even if the parties are with wrong compulsory measures for 24 hours, they can also be compensated by the legal system, such as the state compensation or compensation.In the third part of the article, the author puts forward the suggestions for perfecting public health administrative compulsory measures, including general health administrative compulsory measures and limit the personal freedom of personal coercive measures. For general compulsory measures, the author thinks that the main is to perfect the legislation, standard legal language and accurate positioning of law enforcement agencies and personnel. For example, the adverse drug reaction report and monitoring measures for the administration of article 49 of the added emergency recall drug enforcement measures, but as its host law set by the pharmaceutical administration law of compulsory measures only lists the stop production, the sale and use of emergency control measures. Therefore, on the one hand, the ministry of health should timely take the rules into the revised schedule of work plan. On the other hand before the laws and regulations have not been completely abolished, health practitioners should make instructions and corrective work of the relevant regulations, do timely amendments to involved law enforcement content, avoid the content of the provisions appearing in the related bases of the law enforcement documents, end its effectiveness in health administrative practice level, to avoid conflict of illegality. In addition, due to such compulsory measures that restrict personal freedom relate to the vital interests of citizens, the last section of the article puts forward a more detailed view about this kind of health administrative compulsory measures. The author believes that in the restriction of personal freedom, the law should not only make clear the executing agency and the object, but more importantly standardize executive procedures and conditions, and improve relief measures. As a kind of emergency control measure, isolation measures must be based on public welfare and efficiency, but the procedural principle of administrative act must be abided by, only like this can the balance between public welfare and personal rights be reflected. For one thing, the law should have more detailed provision on the setting up of the detention places and the conditions of isolation treatment, for another, the implementation of the coercive measures on the restriction of personal freedom must be in strict accordance with the order. Before the implementation of the coercive measures restricting personal freedom, such as isolation, the hygienic administrative body should prepare written decision and present it to the principal of the administrative body to ask for permission. The coercive measures can sometimes be implemented first in emergency circumstances, but the relevant procedures should be made up after it. As to the relief system under the legal system of public health, public interests will be threatened when emergency occurs, the administrative subject will be endowed with more power. If there are no perfect legal provisions or the executives do not exercise strict enforcement of the legal procedures, it will be very likely that the benefit of the counterparts will be damaged. At this time, perfecting the relief methods will be the last resort to the protection of the counterparts interests, and this is also the demand of the modern rule of law.