In order to minimize the adverse impact of the epidemic situation on teaching and ensure no suspension of classes, colleges and universities across the country have launched online teaching. At the beginning of the new semester, many students are eager to learn the legal knowledge closely related to epidemic prevention and control. In response, the medical law team of the School of Law of Southeast University took advantage of its disciplines and launched a special small classroom of medical law. It gave professional explanations to the 10 legal issues of epidemic prevention and control that students were most concerned about to help students.
01
During the epidemic situation, what kinds of legal responsibilities should be assumed if violence, threats, or other methods are used to prevent public officials from performing the epidemic prevention and control measures according to law?
[Legal Basis] Article 31 of the Emergency Regulations for Public Health Emergencies; Article 50 of the Public Security Administration Punishment Law; Article 277 of the Criminal Law; On the Punishment of the Prevention and Control of Crimes against Pneumonia Caused by New Coronavirus Infection Opinions
According to the relevant provisions of the Emergency Regulations for Public Health Emergencies, the relevant departments of the people's government in the place where the emergency occurs should obey the unified command of the emergency response command headquarters and actively organize public officials to take relevant control measures. The control measures during the epidemic situation mainly include epidemic prevention, quarantine, compulsory isolation, isolation treatment, etc. In an emergency state where the epidemic is spreading, citizens cannot ensure their own safety by their own efforts. Therefore, it is necessary for the government to play a leading role, concentrate its strength and resources, and within a certain range and within limits, by exercising emergency administrative power and adopting some special response measures to better safeguard the public interest. Only when social security is guaranteed can citizens enjoy freedom. Therefore, the rights of citizens must be properly curtailed, and bear the necessary obligations of tolerance and cooperation. However, in reality, ignoring epidemic prevention and control measures, savage card punching, destruction of prevention and control equipment, and intimidation and assault of prevention and control staff have also occurred from time to time.
According to the relevant provisions of the Public Security Administration Punishment Law, in the process of preventing and controlling the epidemic of infectious diseases, if they do not obey the decisions, orders issued by the local people’s government and their relevant departments or do not cooperate with the prevention and control measures taken by the staff according to law, the public security organ Administrative penalties such as warnings, fines, and detention can be taken against them.
Where violence or threats are used to prevent the staff of state organs and Red Cross staff from performing the preventive and control measures such as epidemic prevention, quarantine, compulsory isolation, and isolation treatment adopted for the prevention and treatment of sudden infectious disease epidemics, the Criminal Law The relevant provisions of the law shall be convicted and punished by the crime of obstructing official duties. The object of the crime of obstructing official duties is a staff member of a state organ that performs official duties according to law. In order to more effectively protect the rights of the staff implementing the epidemic prevention and control, improve the effectiveness of the prevention and control measures, and create a good atmosphere for the prevention and control of the epidemic. The Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice jointly issued the “Opinions on Punishing and Preventing Crimes that Prevent and Control New-type Coronavirus Infection of Pneumonia by Law”. Reasonable expansion explanation. According to the Opinions, any person who carries out public management activities during an epidemic situation can be regarded as a staff member of a state organ. Where violence or threats are used to prevent these personnel from performing the measures for epidemic prevention, quarantine, compulsory isolation, and isolation treatment adopted for the prevention and control of epidemic situations, they shall be convicted and punished by the crime of obstructing public affairs. Those who violently attack the people's police who are performing their duties according to law shall be convicted of the crime of obstructing official duties and shall be punished severely.
[Related case] On the morning of February 3, 2020, Deng Moumou did not wear a mask to go to work in the company, and the prevention and control personnel persuaded him to stop it. Deng Moumou did not listen to the dissuasion, and stepped forward to hit the prevention and control personnel in the face, and then had a fight with the prevention and control personnel. After the company called the police, when the police rushed to the scene, Xu Moumou stepped forward to stop, Xu Moumou hit Xu Moumou with a slap in the face, and then when Xu Mou stopped again, Deng Moumou slapped Xu Moumou with two slaps on the face again. . After the video of Deng Moumou's assault on the police spread on the Internet, it caused a very bad influence. After a trial, the court ruled that the defendant Deng Moumou violently attacked the people's police who were performing their duties according to law, established a crime of obstructing official duties, and sentenced him to 10 months in prison.
(Associate Professor Liu Jianli)
02
During the epidemic situation, what kind of legal responsibilities should be assumed for the fabrication or dissemination of false epidemic information?
[Legal Basis] Article 65 of the Emergency Response Act; Articles 103, 105, and 291 of the Criminal Law, Article 293; On the Punishment of the Prevention and Control of Crimes against Pneumonia Caused by New Coronavirus Infection Opinions
U
nknown is the greatest fear. Real information can ease emotions and provide correct behavior guidance for everyone. During the current epidemic prevention and control period, online platforms such as WeChat, Weibo, and Forum have obviously become the main channels for most people to obtain information. However, the information on the online platform is also mixed with many rumors, causing troubles and even panic to people, and adversely affecting the prevention and control of the epidemic. The Internet is not an extra-legal place, and no one can intentionally fabricate or post false information about the epidemic on Weibo, WeChat, forums, and other network platforms in order to earn attention or clicks, and no false information should be screened. Forward blindly. Depending on the content of the false information and the consequences of the conduct, different legal responsibilities will be assumed.
In accordance with the relevant provisions of the Emergency Response Act, fabricating and disseminating false information about the development of emergency events or emergency response work, or knowingly disseminating false information about the development of emergency events or emergency response work, Order corrections and give warnings; if it causes serious consequences, suspend its business activities or revoke its practice license according to law; if the person who is directly responsible is a state worker, he should also be punished according to law; if it constitutes a violation of public security management, The public security organ shall punish in accordance with the law.
According to the relevant provisions of the Criminal Law and the Opinions on Punishing and Preventing the Corruption of New Coronavirus Infection Pneumonia According to Law, during the epidemic prevention and control period, fabricated false epidemic information, spread it on the information network or other media, or knowingly It is false epidemic information, intentionally spread on the information network or other media, and seriously disturbs the social order, the crime of fabricating or intentionally spreading false information is established. If the perpetrator fabricated, or intentionally spread, or organized or instructed personnel to spread false epidemic information on the Internet, causing trouble, and causing serious chaos in the public order, a crime of provocation and nuisance was established. Those who make use of disasters such as sudden infectious diseases and epidemics to create and spread rumors, incitement to split the country, undermine national unity, or incitement to subvert the state power or overthrow the socialist system shall be convicted and punished with the incitement to split the country or the incitement to subvert the state power. Of course, those who disseminate false information due to credulity and do little harm will not be treated as criminal.
[Related Cases] On January 26, 2020, in order to satisfy vanity and expand network influence, Zhao Mouwei set the photo of himself in a police uniform as the WeChat profile picture, and set the WeChat nickname as Anshan Traffic Police Xiaolong, and A message posted on the WeChat circle of friends said: Anshan Traffic Police Xiaolong warmly reminds everyone! Today, Anshan City Bus! All are out of service! Starting tomorrow, the long-distance passenger station will stop operating all long-distance buses! Tonight I will be on duty and I will take the team out of duty! Tonight from 12 o'clock in the middle of the night! I led the team to close all the highway junctions in Anshan! All vehicles are not allowed to enter our Anshan! Anshan City will begin road closures tonight! Drivers friends! It’s okay, please don’t go out”, and issued a number of police duty pictures. After the information was released, it was forwarded to the circle of friends and WeChat group by many netizens. A large number of citizens consulted the relevant departments by telephone, which caused adverse social impacts and affected the normal order of epidemic prevention and control. On February 10, 2020, the Procuratorate approved the arrest of criminal suspect Zhao Moumou for making and deliberately spreading false information.
(Associate Professor Liu Jianli)
03
During the epidemic situation, what legal responsibilities should be borne by those who drive up prices?
[Legal basis] Article 14 of the Price Law; Article 52 of the Emergency Regulations for Public Health Emergencies; Article 225 of the Criminal Law; Opinions on the Punishment of the Prevention and Control of Illegal Crimes against the Pneumonia that Infects New Coronaviruses Wait.
The price of commodities is determined by many factors such as market share, supply and demand, production costs and so on. During the epidemic situation, masks, disinfection and sterilization supplies, antiviral drugs, related medical equipment and other epidemic prevention supplies are often in short supply, and the appropriate price increase is understandable. However, if the increase is too large, it will affect people's lives and cause panic, which is not conducive to epidemic prevention and control. In order to ensure that the market order of basic people's livelihood commodities such as masks and other epidemic prevention products and grain, oil, meat, eggs, vegetables and milk related to the daily life of the people during the epidemic prevention and control is stable, the law does not allow operators to drive up prices.
According to China's Price Law, Implementation Measures for Administrative Penalties for Price Illegal Acts and other laws and regulations, the following four types of behavior are uplifting prices: ① Fabricating and disseminating price increase information to greatly increase prices; ② Production costs or purchases The cost has not changed significantly and the price has been increased significantly for the purpose of profiteering; ③ The price has been greatly increased in some regions or industries; ④ The hoarding is unusual, resulting in a sharp increase in prices due to the shortage of commodities. The specific price increase or price increase that constitutes the behavior of driving up prices shall be proposed by the provincial price authority according to the specific local conditions and reported to the provincial people's government for approval.
According to the Price Law, Administrative Penalties for Price Illegal Acts and other relevant provisions, during the epidemic situation, if the operator engages in raising prices, the price authority shall order it to correct it. If the illegal gains are confiscated, the illegal gains may be confiscated up to 5 times A fine; if there is no illegal income, a warning shall be given and a fine may be imposed; if the circumstances are serious, it shall be ordered to suspend business for rectification, or the business license shall be revoked by the administrative department for industry and commerce.
In accordance with the relevant provisions of the Criminal Law and the Opinions on Punishing Pneumoconiosis Epidemic Prevention and Control of New Coronaviruses According to Law, during the epidemic prevention and control period, in violation of the relevant national market management, price management and other regulations, hoarding and raising the epidemic prevention and control Masks, goggles, protective clothing, disinfectant and other protective products, medicines or other items related to people's livelihood that are badly needed, make huge profits, have a large amount of illegal income or have other serious circumstances that seriously disrupt the market order, are convicted of illegal business operations Heavier punishment according to law.
[Related Cases] On January 30, 2020, a Beijing citizen reported that Lianjiang Fuben Medical Device Co., Ltd. during the outbreak of new coronavirus pneumonia in Wuhan, the daily sales price on the Tmall platform will be RMB 50 yuan per box (50 independent Packaging) disposable medical masks, increase the sales price to RMB 600 per box, the price is 12 times the usual. On January 31, the Lianjiang City Public Security Bureau filed a case for investigation, and on the same day, arrested the criminal suspect Tanmou in Anpu Town, Lianjiang City. After review, Tan Moumou violated the national regulations on market operation and price management during disaster prevention and control of sudden infectious disease epidemics, and drove up prices and made huge profits, severely disrupting the market order, and the circumstances were serious (sales amount was RMB 65,300) , Suspected of illegal business crimes. On February 6, the People's Procuratorate of Lianjiang City made a decision to approve the arrest of the criminal suspect Tan Moumou.
(Associate Professor Liu Jianli)
04
What kind of legal responsibility shall be borne if a violation of the laws and regulations on the prevention and control of infectious diseases leads to the spread and prevalence of infectious diseases and causes damage to the personal and property of others?
[Legal basis] Article 77 of the Law on the Prevention and Control of Infectious Diseases; Article 67 of the Emergency Response Law; Article 114 of the Criminal Law, etc.
Fighting the epidemic prevention battle not only depends on the scientific coordination of the government, but also requires close cooperation between units and individuals. The whole society should participate in the prevention and treatment of infectious diseases, consciously assume responsibility and perform obligations. Units and individuals who violate the laws and regulations on the prevention and control of infectious diseases, cause the spread and prevalence of infectious diseases, and cause damage to the personal and property of others, shall bear various legal responsibilities.
The first is civil liability. According to the relevant provisions of the Law on the Prevention and Control of Infectious Diseases, units and individuals who violate the provisions of this Law, cause the spread and prevalence of infectious diseases, and cause damage to the personal and property of others, shall bear civil liability according to law. The main nature of this civil liability is tort liability, which infringes on the personal and property rights of others. Specifically, the acts of aggression committed by units and individuals in violation of the provisions of the Law on the Prevention and Control of Infectious Diseases, intentionally or negligently, cause others to be infected and receive isolation treatment, thereby causing damage to their health and even death and property damage. According to Article 16 of the Tort Liability Law, if the tort of the unit or individual causes personal injury to the infected person, it should compensate for medical treatment, nursing care, transportation, and other reasonable expenses for treatment and rehabilitation, as well as reductions due to lost work Income. If it causes a disability, it shall also compensate for the disability living aids and disability compensation. In case of death, funeral expenses and death compensation shall also be compensated.
The second is administrative responsibility. In the process of preventing and controlling infectious diseases, units and individuals do not obey the decisions, orders issued by the local people's government and relevant departments, or do not cooperate with the measures taken by the law, which constitutes violations of public security management. The Law adopts administrative penalties such as warnings, fines, and detentions for units and individuals.
The third is criminal responsibility. According to the relevant provisions of the Criminal Law, units and individuals violate the laws and regulations of infectious disease management, causing the transmission of Class A infectious diseases (plague, cholera) or the risk of spreading, which constitutes a crime against the prevention and treatment of infectious diseases. The 2019 new coronavirus pneumonia is listed as a Class B infectious disease with the approval of the State Council, and measures for prevention and control of Class A infectious diseases are adopted. If the units and individuals do not cooperate with the prevention and control measures taken by the relevant authorities, causing the spread of the new coronavirus, it may constitute a crime against the prevention and treatment of infectious diseases, and at the same time endanger public safety, constitute a crime of endangering public safety by dangerous methods.
[Related Cases] On January 23, Wuhan’s New Coronary Pneumonia Epidemic Prevention and Control Headquarters decided to close the Lihan Channel at 10:00 on the same day and implement closure management. Yin Moumou, a black car driver without a license in Hubei, drove passengers to and from Wuhan and Jiayu twice between 10:00 and 2:00. On February 4, Yin Moumou was diagnosed as a case of new coronary pneumonia. As of February 7, 20 people in close contact with Yin Moumou were segregated. Regarding the case, a few days ago, the court of Jiayu County, Hubei Province made a judgment on the case and sentenced Yin Moumou to one year in prison for the crime of obstructing the prevention and treatment of infectious diseases.
(Associate Professor Liu Jianli)
05
Can the information of patients with new coronary pneumonia be known to neighbors, communities and the public?
New Coronary Pneumonia is a Class B infectious disease. The State Council's health administrative department shall, according to the high pathogenicity of New Coronary Pneumonia and the prevalence and degree of outbreaks of infectious diseases, follow the prevention and control measures for Class A infectious diseases. According to the provisions of Article 7 of the Law on the Prevention and Control of Infectious Diseases, institutions for disease prevention and control at all levels are responsible for infectious disease surveillance, prediction, epidemiological investigation, epidemic report and other prevention and control work. Medical institutions are responsible for infectious diseases related to medical treatment Prevention and control and infectious disease prevention within the area of responsibility. Under the guidance of disease prevention and control institutions, urban communities and rural primary medical institutions are responsible for the prevention and treatment of infectious diseases in urban communities and rural grassroots. Therefore, disease control institutions and medical institutions In the work, all kinds of staff in the community and towns may get the personal life situation, travel trajectory, work unit and personal biological gene information of the new coronary pneumonia patients and their close contacts. Some of this information is the privacy that the patient is unwilling to disclose to the outside world and is known to others, such as physical disease, genetic information, family members, life partners, travel consumption and other information. These information are just epidemiological investigations and proper preventive control. Information necessary for the measure.
There is a need to balance and protect in accordance with the law between personal information rights and public health security interests. On the one hand, the fact that individuals provide information truthfully is an obligation clearly stipulated in the Law on the Prevention and Control of Infectious Diseases. According to Article 12 of the Law on the Prevention and Control of Infectious Diseases, “All units and individuals in the territory of the People’s Republic of China must accept the prevention, investigation, sample collection, and isolation treatment of infectious diseases by disease prevention and control institutions and medical institutions. Control measures, faithfully provide relevant information. On the other hand, the law protects the security and privacy of personal information. Personal dignity is a basic right protected by the Constitution. Article 110 of the General Rules of the Civil Law stipulates that “natural persons enjoy the right to reputation, privacy and other personal rights”, that is, natural persons have the right to privacy and confidentiality. Without permission, others shall not disclose and use. Patients have the right to privacy, that is, patients have the right to protect their privacy, medical history, physical defects, special experiences, encounters and other privacy from any form of external invasion. When the Law on the Prevention and Control of Infectious Diseases was revised in 2013, Article 12 added that “disease prevention and control institutions and medical institutions shall not disclose relevant information and materials concerning personal privacy”. According to regulations such as the Tort Liability Law and the Supreme People's Court's Interpretation of Certain Issues Concerning the Determination of Liability for Compensation for Civil Tort Spiritual Damages, violation of the privacy rights of others shall be liable in accordance with the law.
Therefore, in the prevention and control of New Coronary Pneumonia Infectious Diseases, relevant staff have the right to know the personal information (including private information) of New Coronary Pneumonia patients, patients with suspected cases, and close contacts. The scope of information should be limited to the needs of disease prevention and control. In addition, it shall bear the obligation of confidentiality of the related information learned, and it may not be disclosed publicly without the permission of individuals and legal authorization. It is understandable that, based on the high contagiousness of the new coronary pneumonia infectious disease, the unknown fear of treatment prognosis and safety expectations, the public wants to know the detailed information of the patients. However, the announcements of disease diagnosis, traffic information, and life activity trajectories of new coronary pneumonia patients as the main content, as well as the publicity video of the discharged cases, should hide sensitive information such as the patient’s name, photo, and specific home address to protect their personal Privacy, to prevent it from being discriminated against by others during illness and prognosis. Only relevant staff for the prevention, control and treatment of new coronary pneumonia diseases have the right to know the personal information of patients, suspected cases and close contacts according to work needs, and assume the obligation of confidentiality.
(Associate Professor Chen Yuling)
06
When a patient with new coronary pneumonia is emotional, does the act of spitting on a medical staff constitute a crime?
At the end of the street, it is not surprising that people use their fingers to point others, spit, and other uncivilized behaviors during quarrels. In the early stage of the outbreak of New Coronary Pneumonia in Wuhan, medical resources could not meet the needs of patients for medical treatment, and patients could be forgiven for passing dissatisfaction to medical staff. However, when patients were sad and angry, they deliberately spit on the doctor and tear the doctor’s isolation suit. This situation has aroused social concern after the Internet was made public. The patient's deliberate spitting on the medical staff may constitute a crime. The crimes involved include the crime of intentional injury, the crime of provoking trouble, and the crime of obstructing the prevention and treatment of infectious diseases.
According to the New Coronavirus Pneumonia Diagnosis and Treatment Program issued by the National Health Commission (trial version 6), the current main transmission route of new coronary pneumonia is through respiratory droplets and close contact transmission, and it is exposed to high levels for a long time in a relatively closed environment. Concentration of aerosol, the incubation period of disease is 1-14 days. Therefore, the behavior of patients with new coronary pneumonia vomiting saliva to medical staff will cause the medical staff to be at risk of contracting new coronary pneumonia.
According to the Opinions on the Punishment of the Prevention and Control of Crimes against Pneumonia Caused by New Coronavirus Infection (hereinafter referred to as Opinions) issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice on February 10, 2020, in During the epidemic prevention and control period, if the medical personnel are intentionally injured to cause serious consequences of more than minor injuries, or if the medical personnel are torn off protective equipment, spitting, etc., causing the medical personnel to be infected with the new coronavirus, in accordance with the provisions of Article 234 of the Criminal Law Injury conviction and punishment. The crime of intentional injury requires that the result of infecting volunteers with the new corona virus through spitting or other means is a requirement. If the result is not caused, it does not constitute this crime. The Opinions also stipulates, If you use violence or other methods to blatantly insult or intimidate medical personnel, and comply with the provisions of Articles 246 and 293 of the Criminal Law, you shall be convicted and punished with the crime of insult or provocation. Patients with new coronary pneumonia intimidate medical personnel by spitting, causing disorder in medical institutions, which may constitute a crime of provocation. In addition, refuse to implement the prevention and control measures proposed by the health and epidemic prevention agencies in accordance with the Law on the Prevention and Control of Infectious Diseases. If concealing the disease or spitting out, causing the transmission of Class A infectious diseases or having a serious risk of spreading, the crime of preventing and controlling infectious diseases Conviction and punishment.
[Related Cases] After having symptoms such as fever, cough, cough, phlegm, and shortness of breath, Zhang Mouzhi went to the Dongfang City People’s Hospital and Dongfang Hospital many times from January 24, 2020, during which he deliberately concealed his contact. The situation of Wuhan personnel also spit on the ground during the infusion, and quarreled with the medical staff. On January 29, Zhang Mouzhi and his wife took a train to Haikou Hainan Provincial People's Hospital for examination, and were later diagnosed as a new coronary pneumonia patient by Hainan Provincial People's Hospital. Zhang Mouzhi refused to implement the prevention and control measures proposed by the health and epidemic prevention organs in accordance with the Law on the Prevention and Control of Infectious Diseases, which caused a serious risk of the spread of new coronavirus pneumonia. As a result, 19 medical personnel who were in close contact with them were isolated and observed, and 50 people in the same medical treatment space were isolated and observed at home. The residential area of Shanhaiwan in Dongfang City was closed and controlled, which seriously hindered the prevention and control of epidemics in Hainan Province and Dongfang City. jobs. On February 21, the Dongfang City Court of Hainan Province held a public hearing using expedited procedures and sentenced the defendant Zhang Mouzhi to commit the crime of obstructing the prevention and treatment of infectious diseases, and sentenced the defendant Zhang Mouzhi to commit the crime of obstructing the prevention and treatment of infectious diseases according to law. One year in prison.
(Associate Professor Chen Yuling)
07
How should the rights be guaranteed when citizens fulfill their segregation obligations during the epidemic prevention and control process?
[Legal basis] Articles 12 and 39 of the Law on the Prevention of Infectious Diseases; Articles 3 and 109 of the General Rules of Civil Law; Articles 2, 16 and 62 of the Tort Liability Law; National Compensation Articles 3 and 4 of the Law
According to Article 12, Paragraph 1 of the Law on the Prevention and Control of Infectious Diseases, “All units and individuals in the territory of the People’s Republic of China must accept investigations, inspections, sample collection, and isolation of infectious diseases from disease prevention and control institutions and medical institutions. Preventive and control measures such as treatment provide truthful information. Disease prevention and control institutions and medical institutions must not disclose relevant information and materials related to personal privacy. Article 39 of the Infectious Disease Prevention and Control Law stipulates: Medical institutions have discovered Class A infectious diseases At the time, the following measures should be taken in time: (1) Patients and carriers of pathogens should be treated in isolation, and the period of isolation should be determined based on the results of medical examination; (2) For suspected patients, they should be treated in isolation at the designated place before diagnosis; (3) Patients, pathogen carriers, and close contacts of suspected patients in medical institutions should conduct medical observations and take other necessary preventive measures in designated places. Those who refuse isolation treatment or leave isolation treatment without authorization before the expiration date may be assisted by the public security organ Medical institutions adopt compulsory isolation treatment.
From the perspective of prevention and control of infectious diseases, confirmed patients, suspected patients and close contacts have a legal obligation to cooperate with disease prevention and control institutions and medical institutions to carry out various prevention and control measures such as investigation, inspection, sampling and isolation of infectious diseases. Possibility to control or reduce the risk and scope of disease transmission. But at the same time, it should be noted that for patients who are not diagnosed, suspected and close contacts, the implementation of mandatory isolation measures lacks a legal basis. There have been confirmed or suspected cases found in the units or communities around the country, and the entire unit or community has been closed. At the press conference of the Joint Defense and Joint Control Mechanism of the State Council on February 16, 2020, researcher Feng Luzhao of the Chinese Center for Disease Control stated that whether residents in the community are determined to be close contacts, based on whether they are in contact with the case, the method of contact, the length of contact, Comprehensive judgments such as the place of contact should not consider all the people in the community as close contacts. According to the latest new coronavirus pneumonia prevention and control program (fifth edition) issued by the Health and Health Commission, close contacts are those that begin 2 days before the symptoms of suspected and confirmed cases, or 2 days before sampling of asymptomatic infected patients. Take effective protection against people who have close contact (within 1 meter). In the specific contact situations listed, cohabitation, study, work, or other people in close contact is only possible to meet the criteria for close contact, but it cannot be considered that all residents of the community should be closed and isolated.
On the other hand, in the course of the prevention and control of the epidemic, the acts of violent law enforcement by the relevant personnel appeared, which exceeded the necessary limits of the prevention and control measures and even violated the personal rights of citizens. In Xiaogan, Hubei, the epidemic prevention staff went straight into the residents’ homes and smashed the mahjong table. The two sides clashed, and the residents were dragged outside by the staff to be beaten; in Puyang, Henan, a villager was vaccinated because he did not wear a mask. Tied to the wall. On February 5, 2020, the importance of prevention and control according to law was particularly emphasized at the third meeting of the Central Committee for the Comprehensive Administration of the Country by Law. The purpose of implementing prevention and control measures is to stop the spread of viruses to prevent the spread of the epidemic, and to protect people's lives, health and property safety. Although individuals are obliged to cooperate with the work of the government and relevant departments, the behavior of relevant personnel should be strictly limited to the legal scope. For measures and behaviors that exceed the legal limits, not only can not be rationalized on the grounds of epidemic prevention and control, but also in accordance with relevant The law provides for accountability.
Article 12, paragraph 2 of the Law on the Prevention and Control of Infectious Diseases provides: If the administrative department of health and other relevant departments, disease prevention and control institutions and medical institutions illegally implement administrative management or preventive and control measures, infringing on the legal rights of units and individuals, relevant Units and individuals may apply for administrative reconsideration or file lawsuits according to law. Article 3 of the General Rules of the Civil Law stipulates that personal rights, property rights and other legal rights and interests of civil subjects are protected by law, and no organization or individual may infringe. Article 109 stipulates: The personal freedom and dignity of natural persons are protected by law. In the process of implementing prevention and control measures, the above-mentioned epidemic prevention staff could have taken a more reasonable approach such as dissuasion, whether the act of beating or bundling constituted a tort that violated personal rights, property rights or restricted personal freedom. If they are non-administrative staff, they should bear the tort liability for compensation for losses and apology in accordance with the provisions of Articles 15 and 16 of the Tort Law; if they are administrative staff, they should be based on Article 3 of the National Compensation Law 3. Article 4 stipulates that the agency responsible for compensation shall bear the responsibility for compensating for losses and apologizing.
In addition, the provisions of Article 12, Paragraph 1 of the Law on the Prevention and Control of Infectious Diseases also stipulates the protection of the privacy rights of patients by disease prevention and control institutions and medical institutions. If medical institutions and their medical personnel disclose the privacy of patients, they should also be based on Article 56 of the Tort Liability Law provides corresponding tort liability.
(Associate Professor Gao Xiang)
08
In the process of epidemic prevention and control, the rights and obligations of the expert committee?
[Legal Basis] Articles 40 and 44 of the Emergency Response Law; 2.3 National Emergency Response Plan for Public Health Emergencies; 2.3; National Emergency Response Plan for Medical Emergency Relief, 3.2, etc.
The prevention and control of the epidemic is not only medical treatment, but also comprehensive prevention in many fields including law, economy, politics, and society. The expert committee plays a role as a think tank in the prevention and control project and should fully exercise its rights and perform its obligations. From the National Public Health Emergencies Expert Advisory Committee (2006) established in the National Public Health Emergency Response Plan (2006), an expert advisory committee was established in January 2006, with a total of 105 people and six professional groups under it, to 2011 The Emergency Health Emergency Expert Advisory Committee (the total number of members is 169, and there are 8 professional groups) stipulated in the “Administrative Measures of the Emergency Health Emergency Expert Advisory Committee of the Ministry of Health” in 2015 indicate that the expert committee’s Important role.
On the one hand, the expert committee has the right to make suggestions. That is, obtain information and materials related to epidemic prevention, put forward work opinions and suggestions to the health administrative department, and publish anti-epidemic and quarantine to the society. The public authority should fully listen to the recommendations of the expert committee before taking the following epidemic prevention and control measures: Governments at and above the county level, emergency response headquarters and medical institutions should consult the expert committee before deciding to take isolation measures, so as not to appear Violations of private rights such as “showing the public on the street” and “tied to the tree” and other violations; before the county-level government approves the epidemic area with the approval of the higher-level government, it should consult the expert committee to avoid unreasonable measures and other issues; medical institutions handle the prevention and treatment of the epidemic Before disposing of various medical wastes such as discarded medical products, etc., the expert committee should be consulted to avoid large-scale environmental pollution and ecological damage (risk); before the public health epidemic information is released, the expert committee should consult the expert committee to avoid infringement of citizens Legitimate rights such as personal privacy; before regulating rumors, the public safety department should consult an expert committee to clearly define harmful false statements to avoid misjudging true statements or causing secondary social unrest; local governments above the county level are expropriating individuals Before property, the expert committee should be consulted to avoid infringing private rights by breaching the principle of proportionality. Correspondingly, as for private rights, the expert committee can make recommendations for the protection of personal and property rights. For example, you can make concise and accurate suggestions on the aspects of personal protection measures, the impact of isolation measures on private activities and responses, the scope of requisition and compensation, etc.
On the other hand, the expert committee should undertake corresponding obligations. That is, provide expert opinions in accordance with the law, in a timely and accurate manner. Specifically, the consultation with the health administrative department should promptly and accurately provide expert opinions, and should not disclose internal information without authorization; the internal structure should have a reasonable personnel composition, which needs to be in the fields of medical treatment, public health, environmental science, law, economics, etc. Composition of professionals; regular regular meetings and temporary meetings should be combined in the way of work; information records should be promptly published on its official website for all public meetings and other activities, for public inquiry; the recommended content should be in the epidemic It plays a professional supporting role in prevention and control, and provides timely and actionable suggestions for epidemic response.
(Associate Professor Liu Mingquan)
09
During the epidemic situation, the contractual obligations cannot be performed normally, how should one assume legal responsibility?
[Legal Basis] Articles 94, 117, and 118 of the Contract Law; Article 26 of the Judicial Interpretation of
the Contract Law (2); Article 80 of the General Rules of Civil Law, etc.
Due to the spread of the New Coronary Pneumonia epidemic nationwide, all 31 provinces, municipalities and autonomous regions in the Mainland have initiated a first-level response to major public health emergencies, and many places have issued documents to postpone the time for resumption of business. The sudden outbreak of the epidemic and strict prevention and control measures have led to a considerable part of the contractual obligations not being performed normally. In this regard, relevant laws and regulations should be integrated, and on the basis of reasonable determination of the impact of the epidemic on contract performance, relevant legal responsibilities should be determined.
First, due to the government's corresponding epidemic prevention and control measures, the contract cannot be performed directly, or the parties to the contract cannot perform or cannot achieve the purpose of the contract due to the impact of the epidemic. The force majeure provisions of the contract law should be applied. According to the Contract Law, force majeure refers to an objective situation that cannot be foreseen, unavoidable and insurmountable. If the purpose of the contract cannot be achieved due to force majeure, the parties may terminate the contract. If the contract cannot be performed due to force majeure, part or all of the liability shall be exempted based on the force majeure. It can be seen that, according to the current laws of my country, the premise of applying force majeure to terminate the contract is the purpose of the contract cannot be achieved due to force majeure; the premise of reducing or exempting the liability for breach of contract is cannot perform the contract due to force majeure. Therefore, it is impossible to generalize about the inability to perform contractual obligations due to the epidemic. If this premise is not met, force majeure cannot be applied. In response to a reporter's question, the Legal Work Committee of the National People's Congress also pointed out that the measures taken by the government to protect the public's health for epidemic prevention and control are force majeure for parties who cannot perform the contract. At the same time, it should be noted that, according to the Contract Law, if the parties become force majeure after the delayed performance, the liability cannot be exempted. If one party fails to perform the contract due to force majeure, it shall notify the other party in time to mitigate possible losses to the other party, and shall provide proof within a reasonable period.
Second, after the contract is established, it is obviously unfair to a party to continue to perform due to the epidemic situation or the prevention and control measures. If the party sues for a change or cancellation of the contract, the provisions of the contract law on change of situation may be applied, and the loss caused by the change or cancellation of the contract Discretion based on the principle of fairness. In response to the changes in the basic situation that occurred after the conclusion of the contract, in addition to the force majeure stipulated in the contract law, the Contract Law> Judicial Interpretation (2) provides for changes in the situation. According to the regulations, if there is a significant change in the objective situation after the contract is established that the parties cannot foresee when the contract is concluded, and the continued performance of the contract is obviously unfair to one party, the party may request the people’s court to change or terminate the contract, and the people’s court shall be based on the principle of fairness. , And determine whether to change or cancel according to the actual situation of the case.
Third, if the parties have a clear agreement on the relevant responsibilities and losses, unless otherwise stipulated by laws, regulations and epidemic prevention and control policies, they shall be handled in accordance with the parties' agreement. For some construction contracts, house lease contracts, etc., many contract parties have already made an agreement on force majeure, situation changes and other issues when entering into the contract. In this case, they should be dealt with in accordance with the agreement. If a party regrets that the losses caused by the epidemic situation or the epidemic prevention and control measures require separate treatment, it should not be able to obtain support.
(Dr. Wang Weiling)
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If a medical institution fails to provide medical care, on-site rescue, reception, or referral to infectious disease patients or suspected infectious disease patients in accordance with the law, what legal responsibilities should it bear?
[Legal Basis] Articles 39 and 50 of the Emergency Regulations for Public Health Emergencies; Article 69 of the Law on the Prevention of Infectious Diseases, Articles 330 and 335 of the Criminal Law; Article 54 of the Tort Law, Article 57 etc.
According to relevant laws and regulations, medical institutions should take emergency measures for diagnosis and treatment of critically ill patients, and must not refuse emergency treatment. When a medical institution finds an epidemic of an infectious disease, it shall provide on-site rescue to the sudden patient. The infectious disease patient and the suspected infectious disease patient who come to the clinic must be consulted and treated. For patients who are limited to equipment or technical conditions and cannot be diagnosed and treated, they should perform the obligation of explanation and Referral obligation to refer patients to the designated medical institutions in a timely manner.
In the course of epidemic prevention, medical institutions failing to provide medical care, on-site rescue, reception, referral for infectious disease patients or suspected infectious disease patients, or refuse to accept referrals, shall bear corresponding legal responsibilities. The first is administrative responsibility. The health administrative department of the people’s government at or above the county level shall order corrections, report criticisms, and give warnings; those responsible for the spread, prevalence, or other serious consequences of infectious diseases shall be given legally responsible persons in charge and other persons directly responsible. The punishment for demotion, dismissal and dismissal may be revoked in accordance with law. The second is civil liability. If a patient with an infectious disease or a suspected infectious disease is injured in the diagnosis and treatment activities, and the medical institution and its medical personnel are at fault, the medical institution shall bear the liability for compensation. Third, if it constitutes a crime, criminal responsibility shall be investigated according to law. According to the relevant provisions of the Criminal Law, when a medical institution refuses to implement the prevention and control measures proposed by the health and anti-epidemic institution in accordance with the Law on the Prevention and Control of Infectious Diseases, it fails to provide medical care, on-site rescue, consultation, Referrals that cause the transmission of Class A infectious diseases or have a serious risk of transmission constitute a crime of obstructing the prevention and treatment of infectious diseases, and may be held criminally responsible for the unit and its directly responsible supervisors and other directly responsible personnel. In addition, in the process of treating patients with infectious diseases or suspected infectious diseases, medical institutions should comply with the diagnosis and treatment standards and fulfill the obligations of diagnosis and treatment corresponding to the medical level at that time. If the medical personnel are seriously irresponsible and fail to rescue, receive or refer on-site in time, resulting in the death of the patient or serious damage to the health of the patient, they shall be convicted and punished with the crime of medical accident.
[Related case] On January 29, 2020, a patient in Yongchang County was transferred from Yongchang County People's Hospital to Jinchang Central Hospital due to aggravation of cough, shortness of breath, and fever for 3 days. Jinchang Central Hospital is not admitted for treatment on the grounds that the isolation ward of the intensive care unit is reserved for patients with new coronavirus infection. Despite repeated requests from patients and their families, the hospital always refused to admit the patient. After receiving the patient's family members' feedback, the Gansu Provincial Health Commission, in accordance with the Infectious Disease Prevention Law and other laws and regulations, ordered the Jinchang Central Hospital to immediately correct the illegal behavior, give a warning, and notify the province of the criticized administrative punishment. At the same time, it is recommended that the principal person in charge of Jinchang City Central Hospital be given administrative punishment according to relevant regulations in accordance with relevant regulations.
(Associate Professor Liu Jianli)
The School of Law of Southeast University started to develop the medical law discipline as early as the 1990s. The former Nanjing Railway Medical College was the first to establish an undergraduate medical law major in the country. In 2000, this major was incorporated into the law department of our school. In 2003, the medical law research direction was established at the Master of Civil and Commercial Law, and it became the first school in the country to enroll postgraduates of medical law. In recent years, the School of Law of Southeast University has been adhering to the cross-cutting, team-oriented, practical school-running philosophy. With the help of the strong disciplines of medicine and life sciences of Southeast University, it has further vigorously developed the medical law discipline. Medical law is now included in Southeast University Focus on supporting the development of special subjects.
For more exciting medical law knowledge, please study the online open course Dialogue between Medical Affairs and Law carefully created by the medical law team of Southeast University.