1. Problems in the rights limitation of the new coronavirus response

In this response to the new coronavirus, various governments have taken a series of emergency measures. The specific manifestations are: closing the city, closing the road, closing the village and closing the household, collecting and requisitioning vehicles, ships, houses and other materials needed for emergency, etc. Undoubtedly, it limits the freedom and property rights of natural persons, legal persons and other social organizations. It should be said that the local governments have taken the above emergency measures to prevent the spread of the epidemic and the crisis of more people’s lives, health, and property rights. They are also in line with international human rights law and the common practice of the constitutions and laws of various countries. But it also exposed the following problems:

First of all, the rights restriction norms in the current legislation are too abstract, and the enforceability is not strong. The provisions of Articles 11 to 13 and Article 52 of the Emergency Response Law (hereinafter referred to as the Response Law) include: emergency measures are consistent with the nature, degree and scope of social hazards, and there are a variety of measures Those who choose should choose measures that are conducive to protecting the rights and interests of citizens, legal persons and other organizations to the greatest extent, as well as property expropriation and compensation. Articles 12 and 16 of the Law on the Prevention and Control of Infectious Diseases respectively stipulate the relief of administrative law enforcement infringement, the prohibition of discrimination and the principle of equal protection. Obviously, this type of regulation is only a principled and generalized right-limiting norm, that is, the right limitation should conform to the principle of proportionality and the principle of equal protection, but it does not stipulate which rights can be restricted and the scope, degree and method of limitation in an emergency. And deadlines.

Secondly, the emergency mandatory and punishment clauses of local normative documents do not comply with the principles of legal reservations. The Legislation Law clearly states that laws restricting personal freedom can only be promulgated by the National People’s Congress and its Standing Committee, and the relevant administrative compulsory law and punishment law also have specific provisions. It can be seen from this that the local government's emergency legislation is indeed improper.

Once again, the law enforcement personnel's emergency law enforcement violated the principle of proportionality and violated the rights of personality, freedom and property. For example, in some places, “people who don’t wear masks are tied up when they go out”, “family playing mahjong at home are slapped and slapped even on the street”, “Dali City Health Bureau illegally requisitioned masks”, etc. These brutal and willful law enforcement actions have exceeded the scope and limits of the right restrictions. State respect and protection of human rights are the basic principles and value goals established by our Constitution. In an emergency state, the rights should be restricted, and the restrictions are greater than in the normal state, but there must be a degree, and more scientific and rational law enforcement.

 In view of the above problems, the author proposes to amend the Response Law, add a special section on rights limitation, establish the principle, scope, degree, method and duration of rights limitation in emergency response, and issues related to authorized enforcement.

2.Second, the basic principles of rights limitation in emergency response

The current emergency response legal system has established the principle of equality and the principle of proportionality. The author proposes to increase the principle of the inviolability of human dignity and the minimum life guarantee when amending the Response Law.

First of all, human dignity is inviolable. Human dignity is the bottom line standard of human beings, and respecting and protecting human dignity is the minimum requirement of national human care. Article 38 of our Constitution stipulates that “personal dignity is inviolable. It is forbidden to insult, defame or falsely frame citizens by any means”. In response to emergencies, the state may restrict some rights based on consideration of public interests, but it must not touch the bottom line of personal personality.

Second, the principle of equal protection. Equality means first, the same situation is treated the same, different situations are treated differently; secondly, it prohibits discrimination, and discrimination based solely on race, color, sex, language, religion, or social origin, etc., in any case Prohibited. Article 4 of the International Covenant on Civil and Political Rights (hereinafter referred to as the Civil Rights Convention) has corresponding provisions. Article 16 of the Law on the Prevention and Control of Infectious Diseases clearly states that no unit or individual may discriminate against infectious patients, carriers of pathogens and suspected infectious patients. In this epidemic response, the use of zoning and grading isolation measures for different regions and different patients is due to equal protection.

Again, the principle of proportionality. Emphasize the legitimacy of purpose, the relevance of means and purpose, and the least intrusiveness. Article 4 of the Civil Rights Convention stipulates that the degree of human rights derogation is limited to those strictly required by the emergency situation. Article 16 of the Response Law also has corresponding provisions. However, in this epidemic response, some local governments, regardless of the scope and severity of the epidemic, have adopted the iron barrel formation type of strict prevention measures. Although the purpose is good, it also does not meet the principle of minimum violation. This excessive restriction has violated citizens' personal freedom, labor rights and education rights.

Finally, the principle of minimum living security. Article 32 of the Response Law Emergency Material Reserve also includes the storage and supply of necessities of life. However, in this epidemic response, the government's supply of necessities for people in areas with severe epidemics is relatively lagging or even not in place. Some necessities for life are provided by volunteers in an emergency. It must be emphasized that the provision of minimum living security materials is first and foremost an obligation that the state should fulfill.

3. The scope of rights that must not be restricted in response to emergencies

In order to prevent excessive restrictions, international human rights law and the Constitution of each country have made corresponding restrictions on rights. This is the normal state, and the emergency state is no exception. It's just that the restriction model is not exactly the same, some of them use enumeration, some use generalization, and some use differentiation. my country’s Constitution adopts a generalized power-limiting model and focuses on Article 51. This model authorizes the legislature to pass laws to restrict the rights of people and citizens, without specifying specific rights that the law cannot restrict.

What rights and freedoms should not be restricted? The constitutions and laws of different countries are not exactly the same.

First of all, the right to life, dignity, and private life are inherent rights that people have to enjoy based on their natural attributes, and are the source and basis of human survival. In any case, the subject of such rights can only defend against infringement by the state, society, and others, but cannot harm others. In this epidemic prevention, playing mahjong at home belongs to the scope of private life and must not be interfered with. Secondly, the right to material help and the right to medical assistance are survival guarantees for maintaining health and continuation of life. From a functional perspective, they also belong to the protection scope of the right to life. Thirdly, freedom of thought, conscience and belief, thought and conscience belong to rationality and moral thinking, and belief belongs to mental return. All three involve psychological activities such as fact determination, value judgment and inner confidence. Of course, thought, conscience, and faith can only be confined to the heart, not to the outside, otherwise they should be restricted. Fourth, the right to know is a new type of right enjoyed by the public based on the disclosure of government affairs and the obligation of government to inform. In an emergency, this right is unrestricted because being informed and informed of emergencies is a basic prerequisite for citizens’ self-control. In the early stage of the epidemic, information was delayed, and people inside and outside the area where the epidemic was severely invaded, increasing the geographical and personnel scope of the virus spread and infection. It must be said that the government was seriously negligent. Finally, the right to legal remedies refers to the rights in fair trial, help from lawyers, unsophisticated law, legal punishment, exclusion of illegal evidence, and state compensation.

4.Conclusion