Legal Guarantees to the Right to Health in China
Prof. Zhang Yue: China University of Political Science and Law
1). Concept of the Right to Health
The right to health is also called the right to life and to health in China, and it
mainly indicates that the citizen has the right to protect his life security and
physical and mental health from being encroached illegally in accordance the
law. It has three kinds of types, namely right to life, right to physical body and
right to health. Article 98 of “General Principles of the Civil Law of P.R.C”
stipulates that " the citizen enjoys the right to life and to health ".
The right to health has the following three characteristics: First, the right to
health regards normal operation of the human body's physiological function
and normal exertion of human body’s function as the concrete content, and
does not regard whole structure of the human body as the object. If it is only
the whole structure of the one’s human body that is infringed, that means one’s
human body right is infringed. Second, the right to health regards maintaining
the normal life activity of the human body as the fundamental interests, and
does not regard people's life security as the object. If it is one’s life is infringed,
for example, one is murdered on purpose, that means one’s life right is
infringed. Third, what the right to health protects is the normal exertion of
citizen’s body function but not his body and mind from being restricted.
The concrete content of the right to health are: (1) the right to maintain health.
Health maintaining right means that the citizen has the right to keep one's
health and as his health is infringed, he has the self defense right and can
apply to the government for protection. (2) Labor ability maintaining right.
Labor ability refers to the ability to create material and spiritual wealth. The
citizen enjoys labor ability maintaining right. When one’s labor ability is
infringed, he has the right to ask for compensation from the inflicter. (3) Health
interest disposing right. That means the citizen has the right to dispose his
health interest.
Article 3 and 25 of “International Covenant for Human rights” have included the
content of health right, and the relevant laws and regulations conform to the
declaration of human rights spiritually. The legal protection of the right to
health is an important content of Chinese government’s protection of human
rights.
2). Legal guarantee of the right to health in China
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The legal system construction of China has not been easy. But in the recent
decade, Chinese government put emphasis on ruling the country in
accordance with laws. As the legal construction steps into the right path, the
citizen's the right to health issue is paid attention to gradually, and it have
made important progress in protection of the right to life and health. At present,
China has already tentatively set up the comprehensive legal security system
for right to life and health, including Constitution, Civil Law, Criminal Law and
Administrative Law, etc..
Article 21 of Chinese constitution stipulates that the country will develop health
care services and protect the people’s health. Article 33 of the newly revised
constitution in 2004 stipulates clearly to protect the right to health, which has
been the first time for China to do so since the People's Republic of China was
established.
Article 98 of " General Principles of the Civil Law " of China stipulates that the
citizen enjoys right to life and health and article 119 has stipulated the civil
liability for infringing other people’s right to lift and health. In the “Civil Law OF
P.R.C.” that is now under discussion, an independent chapter is for the right to
health, and this has expanded the protection range of the right to health.
Article 132 and 133 of China Criminal Law has stipulated the criminal liability of
the bodily injury. Article 22 of " Punishment Regulations for Public Security
Management” has stipulated the administrative punishment for minor injury to
others by beating. In addition, there are articles related to protection of life and
health right in many single laws and regulations. For example, “methods for
malpractice treatment” has stipulated the legal liability for death and disabling
of patients, functional obstacles due to damage to organs because of medical
worker’s fault during the diagnosis and treatment work.
In March of 2003, with regarding to the problems arising in the practice of legal
protection of the right to physical body carried out by courts at all levels in the
14 years form 1986 to 2000, the Supreme People's Court of issued “The
explanations of several questions for confirming compensation liability for
spiritual damages of civil right infringement”, for protection of rights to life and
health.
3). The liability punishment of the infringement of the right of individuals to life
and health
The action for infringement of right to life and health shall bear different legal
liability in accordance with the degree and result of the infringement, and the
legal liability includes criminal liability, administrative liability and civil liability.
1. Criminal liability
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When the action of life and health infringement is serious and reaches the
degree of crime committing, the infringer shall bear criminal liability and be
punished. The criminal liability is the strictest of its kind in all the legal liabilities.
China's " criminal law " regulates: "if one injures others' body on purpose, he
will be sentenced to the fixed-term imprisonment or the detention under three
years. If one injures other’s body on purpose and the injury is severe, he will be
subject to fixed-term imprisonment of not less than three years but not more
than seven years. If one kills other one, he will be sentenced to imprisonment
over seven years or life imprisonment. If one injures other one severely by
mistake, he will be sentenced to the fixed-term imprisonment or the detention
under two years, and if the injury is very severe, he will be sentenced to
fixed-term imprisonment of not less than two years but not more than seven
years. The “methods for malpractice treatment” made by the Chinese Ministry
of Public Health stipulates that "if the medical worker is extremely irresponsible
and causes the patient die, and the plot is abominable to form crime, the
judicial authority shall investigate the direct person liable for criminal liability.
Article 36 of "Law for maternal and infants health care" stipulates: "if one has
not obtained relevant certificates of competency that the country awarded, and
performs the gestation stopping operation or takes other methods to stop
gestation, and has caused people to die or be disabled or lose basic labor
capacity, he shall be investigated for criminal liability in accordance with article
134 and 135 of criminal law." The second paragraph of article 51 of “Drug
management law” stipulates : “if one or a department produces and sells bad
medicines, endangering people’s health and causing serious consequences,
he or the department shall be investigated for criminal liability in accordance of
article 164 of criminal law.”
2. Administrative liability
As the infringement of citizen’s life and health right is not serious as to offend
against criminal law, the infringer shall bear certain administrative liability. The
types of bearing administrative liability, also the types of administrative
punishment, are the following two kinds: One kind is the administrative
sanction to the people by his government offices, enterprises and public
institutions in accordance with the authority entrusted by law, another kind is
the administrative punishment to direct person liable by the judicial authorities
excluding his employing unit. Administrative sanction includes warning,
demerit recording, degrading, dismissing from one’s post, firing to be watched,
firing, etc.. Administrative punishment includes warning, fining, detention,
confiscating, license revoking, property detaining, closing, etc.. A lot of laws
and regulations have clauses about the administrative liability for infringement
of citizen's life and health right. For example, article 22 " Punishment
Regulations for Public Security Management” stipulates: “if one beats and
causes minor injury to another one and the plot is not severe to be investigated
for criminal punishment, he will be sentenced to detention of less than 15 days,
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and fined less than 200 Yuan or be warned.
3. Civil liability
In the judicial practice, a large number of infringement behaviors of citizen’s life
and health is not severe enough to offend against criminal law, and these
behaviors are usually handled in accordance with the law on infringement of
rights of Civil Law. Meanwhile, in some cases of infringement of citizen’s life
and health right, the infringer shall bear civil liability even after has beard the
criminal liability or administrative liability. So, civil liability is the most common
one in the legal liability of infringement of citizen's life and health right. There
are more than 10 kinds of ways to bear civil liability in article 134 of " general
rule of the civil law ", such as stopping the infringement, eliminating the
influence, apologizing, compensation, etc.. But the purpose and function of law
for infringement of rights lie in compensating and relieving victims, so, the civil
liability method for infringement of citizen’s life and health right is mainly
compensation for the losses. Article 119 of " general rule of the civil law "
stipulates: "if one infringe other’s body and causes injury to him, the former
shall compensate the latter for medical cost, income loss because of work
delaying, life allowance for disabled person. If one kills another one, the former
shall pay funeral cost, necessary living cost for the person who was formerly
raised by the died.
3. Problems of legal guarantee of the right to health
1. Laws are not harmonious with each other in legislation.
2. Some regulations for the compensation of spiritual injury in the infringement
case of the right to health are lack of operability, which has influenced the
fairness and authority of jurisdiction.
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