— From the Perspective of the Protection of the Right to Health

 

 

Abstract: A public health system generally refers to public utilities oriented toward protecting and improving health. It is intended to protect the health of the general public. Since the founding of the People’s Republic of China, China has constructed the largest healthcare system in the world. The 20th National Congress of the Communist Party of China (CPC), stressed that China will improve its public health system. Looking back at the history of China’s public health system from its inception to the reform and development and then improvement, it can be found that its development has always revolved around the theoretical logic of unifying rights and obligations and the practical logic of balancing the protection of the right to health and the regulation of state power. The fundamental goal is to protect the right to health of the people. The increasing health risks in modern society have changed require that efforts be made to construct a crisscrossing legal framework for public health, improve early-warning and emergency response mechanisms for public health emergencies, and integrate the health concept into all policies to further improve the public health system.

 

Keywords: public health system · right to health · theoretical logic · practical logic · rule of law

 

As a basic human right, the right to health is closely related to the level of the public health system. The “2022 Beijing Forum on Human Rights” held on July 26, 2022 had five parallel sessions, one of which was “Public Health Security and Human Rights Protection.” By reviewing the history of public health development, we can see that although the theoretical basis of the development of public health and the promotion of the right to health have been very different in different periods, they always had the same goal — protecting people’s health. This will help us to understand public health accurately and provide experience and lessons for human health care.

 

In the early days of the People’s Republic of China, there were many things to be done. The legal system was not yet complete, and legislation on public health was few and far between. With the launch of reform and opening-up, the legal system has improved in line with economic and social development, and public health legislation has come into a period of development. After many emergent public health events, such as the prevention and control of infectious diseases, China’s public health legislation has been surging. For example, in 2003, within one month of the outbreak of the SARS pandemic, the State Council formulated the Regulations on Public Health Emergencies, establishing a unified, efficient and authoritative mechanism for responding to public health emergencies, and providing a legal basis for the government to fight against SARS.¹ In the following year, the Law on the Prevention and Treatment of Infectious Diseases was revised and improved. In 2007, the Emergency Response Law of the People’s Republic of China was promulgated to prevent and reduce the occurrence of emergencies, protect people’s lives and health, and safeguard national and public security. Since the new era, public health legislation has been developing to be more systematic and specialized, which has helped improve the public health system. The promulgation of the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care in 2019 (hereinafter referred to as the Law on the Promotion of Basic Medical and Health Care) addresses the absence of the basic law in the field of public health and provides a legal basis for public health law enforcement and the prevention and control of COVID-19. After more than 70 years of difficult exploration, China’s public health system has gradually developed into a systematic and specialized direction. However, we still need to be vigilant about the existing problems. For instance, the system framework is not scientific enough; the prevention and control early warning mechanism of major emergency public health events is not perfect; citizens’ awareness of health responsibility is weak. This paper attempts to explore the formation and logical progression of China’s public health system from the meaning of public health, and then summarize the inadequate aspects of the public health system and point out effective ways to improve it and the direction of future efforts.

 

 

Wiliam Hardy McNeill, a well-known American scholar, says in his book Plagues and Peoples that infectious diseases existed before the earliest people, and will always coexist with human beings. They will remain one of the basic parameters and determinants affecting human history.² The history of public health is a history of the struggle between human beings and diseases, which has profoundly influenced the progress of human society. Therefore, an accurate understanding of the meaning of public health will help protect public health and promote the realization of the human right to health.

 

 

In ancient times, human beings lived in a dangerous and uncertain environment and feared unknown phenomena such as wind, rain, thunder and lightning produced by nature but did not know the reasons. They gradually formed a social cognition that gods dominate all things. At that time, diseases were regarded as devils’ and gods’ punishment for unclean people.³ Besides, there were no independent medical skills. When people encountered diseases, they would ask for the gods’ blessing and exorcise the evil spirits. Witchcraft also emerged at that time, and the protection of health had strong relation with witchcraft. Primitive humans gave “witchcraft” a lot of mysterious color, regarding it as the medium of communication with the gods. Thus, it gave birth to a complete set of incantations, sacrifice and prayer rituals. Sorcerer divination was very popular in the late Neolithic period. When there was a terrible disease, the sorcerer would often conduct priestly divination to explain the cause of the disease according to the cracks after the burning of the tortoise bones, and inform the solution to the disease. During the Xia and Shang dynasties of China, witchcraft was the main method to treat epidemic diseases and protect human health. Witch doctors burned tortoise bones and prayed to the gods and treated the infected people, which to some extent had the “quarantine” function to prevent the spread of the disease. It can be seen that there was no such concept as “public health” in ancient times, and the guarantee of health mainly depended on the benevolence of the “gods.”

 

 

In the 5th century BC, under the influence of natural philosophy, human’s understanding of health began to change. The mode of health and disease entered the second stage — witchcraft and medicine began to separate. In this stage, health was about the balance of the body. Ancient Greek physician Hippocrates (Ιπποκρ?τη?) believed thatthe spirit and body could not exist independently. They affect each other. And the patient is a whole.⁴ This medical model reflects natural philosophy. But the times played a joke on him. In the history of medicine, the era after him was the rise and fall of ancient Rome. Even in the later Middle Ages, the only light to illuminate the darkness was lit by the Christian church. Bishoprics and monasteries became the only center of knowledge teaching in the Western world.⁵ Hippocrates’ simple, scientific, holistic view of medicine was at odds with the religious notion of supreme divine rule. Health was still considered to be given by God or simply individual health. In continental Europe, for example, where the church controlled the spiritual and social spheres of the time. Medicine was forced to focus again on treating individual physical ailments, ignoring mental illnesses and poor social conditions.⁶ So people had a very narrow understanding of health at that time. The right to health, as a private right, was still limited to the health of an individual’s bodily functions and ignored other factors that affected health, such as psychological, environmental and social factors. This also made the legislators unable to realize the relationship between individual health and public health, and between individual interests and public interests, and thus unable to regulate the intervention of the state power and to seek relief.⁷ Later, despite the continuous development and progress of medical technologies, infectious diseases occurred frequently. Legislators gradually realized the importance of environmental protection for public health and began to take various measures to improve the health environment to protect people’s health. For example, 4,000 years ago, in the Indus Valley of Mohenjo Daro and Harappa in Punjab, the ancient city began to consciously build bathrooms and drainage systems to promote personal cleanliness and sanitation in the public space.⁸ This action of improving the surroundings and equipment is regarded as one of the origins of early public health.⁹ In Ancient Greece and Rome, public health management systems were also established. For example, Greek city-states consciously provided public health services for their residents, while Rome had special health commissioners responsible for water supply, maintenance of public bathrooms, street cleaning, food safety management and other issues. Although the Middle Ages was a dark age, the practice model of public health was basically shaped during this period. People ensured public health security through the construction of hospitals, quarantine, and the provision of medical care and social assistance to members of society.¹⁰ The discovery of bacteria at the end of the 17th century ushered human society into the era of true “medicine”. The use of sterilization, antibiotics and so on greatly reduced the probability of death caused by infection of patients. Infectious diseases were gradually under control. The development of medicine has promoted health security and unveiled that human health and diseases are affected by the physical environment and related to the social system, economic conditions, ans people’s psychological and spiritual state.¹¹ Since then, public health has begun to be professional and standard.

 

 

Human rights are a concept that originated in the West. “It derives from Western political thought and practical liberalism.”¹² The maturity of Western natural law theory promotes the formation of the liberal human rights theory. Human rights, in this sense, are generally regarded as a kind of natural right. At the beginning of its establishment, this view of human rights had certain class attributes. Values such as freedom, equality, fraternity and the supremacy of the individual were designed to serve the interests of the emerging bourgeoisie. However, it cannot be denied that these value choices reveal the universal moral demands of human beings, which are constantly updated over time and gradually transcend national values and become global values. The spread of the concept of human rights promoted the development of modern Western science and technology, material prosperity and political progress to some extent.¹³ With the rise of the Enlightenment, theocracy and kingship gradually retired, individual rights became stronger, and human rights ushered in a new stage of active development. Meanwhile, the Enlightenment also changed the world in terms of social practice. It brought a new world to mankind — the world of coal and iron. In the 19th century, while rapidly promoting economic development, the Industrial Revolution also brought a lot of negative effects. “The Industrial Revolution greatly increased social productivity, yet the huge wealth generated was not properly distributed, resulting in class antagonism. Many of the industrial proletariat only feel its harm (e.g., deterioration of the public environment, damage to the health of workers), which makes an unfair society even more unfair.”¹⁴ Under this social background, class contradictions became more prominent. And the frequent occurrence of cholera, bubonic plague, plague and other infectious diseases gave rise to ever-increasing workers’ movements. The Industrial Revolution also impacted the original public health guarantee mode of the Middle Ages, which made people pay the price of illness and premature death. The old public health system could no longer solve the severe public health problems brought by the development of the times, so the vibrant health movement began. The core of Western liberal human rights theory is to explore individual value, enable people to be independent of society, and emphasize the superiority of individual rights to prevent the infringement by state power.¹⁵ Therefore, this period did not witness the awareness of the obligation of the state or the government to public health and the health care of the people. The concept of public health protection comes from equality, fraternity and respect contained in the concept of human rights. To a certain extent, the Western liberal concept of human rights has strongly promoted the further development of public health and made states begin to pay attention to public health and its protection.

 

 

The public health law in the modern sense began in the United Kingdom in the mid-19th century. In 1842, Edwin Chadwick, the father of modern public health, published a Report on the Sanitary Conditions of the Labouring Population, which was called an important document in the history of world public health. It demonstrated that the occurrence of infectious diseases (cholera, typhoid fever, etc.) was directly related to sanitary conditions with detailed and accurate data.¹⁶ The report awakened the government’s attention to public health security. The government also took this opportunity to carry out health improvement campaigns and introduce the first modern public health law, the Public Health Act (1848) (hereinafter referred to as the Act).¹⁷ The Act clarified the important responsibilities of the government in public health governance, and ushered in an era of government-led public health governance. With the development of the Industrial Revolution, public health legislation emerged in Western Europe and the United States, and had a profound impact in the following century. For example, the State Vaccination Law of Germany,¹⁸ promulgated in 1874, required that all people be vaccinated against smallpox to protect people’s right to life and health. The rapid development of public health in the 19th century was inseparable from the support of the welfare state theory at that time. The term “welfare state” was coined by British Bishop William Temple in 1941 to refer to Western democratic countries as opposed to “war states.”^{19 T}his theory started at the end of the 19th century and matured in the 1950s. The Oxford Handbook of Comparative Politics defines the welfare state as a state form in which the government, as the main responsible subject, solves the problems in society by implementing a wide range of social welfare systems and policies. As a special term, the welfare state has experienced more than 70 years of development. Although its definition is constantly changing, its basic content is largely similar — the state has the main responsibility in social security. Under the influence of the welfare state theory, public health developed rapidly. Under the guidance of this theory, many countries established and improved their own public health and social security systems. In particular, the welfare state system after World War II had a higher degree of security than the previous welfare systems. Over the years, the welfare state system has developed different types and models. But, in general, it has formed a relatively complete set of system designs and arrangements, especially in public health security, such as the state’s provision of old-age security, family subsidies, disability allowances, minimum living security, minimum medical security, education equity security, housing benefits, etc. Its purpose is to provide comprehensive and effective social security for society and the people, solve social problems such as unemployment, excessive income gaps, and poverty, ease social conflicts, and ensure the normal operation of social order and economic life.²⁰ The welfare state system has indeed guaranteed the basic life of some poor people, especially in the areas of public health, medical security and the protection of the right to health.

 

As the country with the most typical universal medical insurance model, the United Kingdom has built the largest and most concentrated National Health Service in the world according to the proportion of the population. Together with a small number of private medical insurance companies, it has incorporated the whole people into the medical insurance system, and established a welfare state model for the whole people from the cradle to the grave. Among them, the national medical insurance model is the core. This medical model is mainly operated by the government directly, which raises medical insurance funds in the form of taxes. The medical insurance funds are allocated to medical institutions in the form of national financial budget grants to provide free or low-cost services to citizens. The ownership and operation rights of medical service institutions are owned by the government. The UK clearly stipulated in the Patient Charter that patients have the right to receive medical care for their own clinical needs, not according to their consumption ability, lifestyle or any other factors. In terms of the financing mechanism, 95 percent of the funds for national hospitals come from government grants and 5 percent from service charges. These welfare policies, to a large extent, have solved the poor citizens’ problems of limited access to medical care and high costs of medical care.

 

In its more than 100 years of development, Germany has always regarded social welfare as a basic principle of the national system. Besides, it has defined itself as a social, democratic and welfare state in its Basic Law, striving to protect the weak in society during development and constantly seeking social justice. Under the guidance of this basic principle, the social security system of the Federal Republic of Germany shows the outstanding characteristics of mutual aid and mutual help. As an important task, medical insurance is undertaken by the state in the welfare state system, which is consistent with the goal of German health policy — to maintain and promote national health, and to help citizens recover when they are ill. Accordingly, Book V: Statutory Health Insurance of the German Social Code clearly stipulates that the task of Statutory Health Insurance as a mutual aid organization is to maintain, restore or improve the health status of the insured, and every citizen has the right to maintain his/her own health regardless of his/her social status and economic status. In Germany, the statutory health insurance covers about 91 percent of the population. If commercial insurance is added, the entire insurance system in Germany will provide health protection for 99.8 percent of the national population. 

 

The United States is also a typical country that implements a welfare system. The difference is that the United States does not pay attention to establishing a unified national health security system that covers the whole people, but mainly focuses on private medical insurance, supplemented by many complex medical security systems for specific groups, such as the Federal Employees Health Benefits Program, Military Health System, Indian Health Service, Medicaid, Medicare, State Children’s Health Insurance Program, etc. However, in terms of public health security, the United States passed the Public Health Service Act in 1944,²¹ which clarified the responsibilities of the state in the prevention and treatment of infectious diseases, and for the first time, required the establishment of quarantine institutions, marking the beginning of public health governance in the US.

 

From the public health systems of these three countries, we can see that the welfare state system has indeed provided a relatively complete basic medical service for most citizens, especially the right to health of low-income groups. As a basic theoretical system prevailing in the 1960s, the welfare state system played a leading role in the globalization of the concept of public health promoting the right to health.

 

With the development of the world economy and the acceleration of globalization, the whole global society is at great risk. It has been three years since COVID-19 broke out at the end of 2019. Almost all countries in the world have suffered from the direct or indirect impacts of the pandemic. Under the impact of COVID-19, hidden loopholes in the public health systems of various countries have gradually emerged. In the years to come, the construction of public health systems in various countries and the world at large needs to be improved through continuous practice. One thing is certain: The development of modern public health cannot do without the protection of the legal system, let alone the support of rule of law. The rule of law in public health is good medicine against the public health crisis, which establishes the institutional basis for ensuring public health.

 

 

Public health systems have evolved over a long-term struggle of people against diseases.²² It is the foundation for the health of citizens. Since the founding of the People’s Republic of China in 1949, China’s economic and social systems have undergone earth-shaking changes. The construction of the public health system has changed several times in the long history. The public health legislation has continued to develop and improve through a process from being weak to rich, fragmented to comprehensive, and single and disordered to systematic and united. The establishment of the public health system cannot be separated from public health legislation, which effectively protects the public’s right to health. The building process of the public health system since the founding of New China consists of the following three stages.

 

 

In China, the state has fought against epidemic diseases and ensured people’s health since ancient times. According to the study of Gong Shengsheng, from 770 BC when an epidemic disease was recorded to the demise of the Qing Dynasty, there was a total of 669 years of epidemic disease disasters in ancient China, with a frequency of 25 percent. It can be seen that epidemic disease was one of the major disasters of the ancient Chinese nation.²³ In the process of fighting against epidemic diseases, the Chinese nation has formed a set of effective methods, measures and systems, mainly through the state taking responsibility for the protection of public health. Although the people in olden times lacked knowledge of sanitation and public health, with the 

development of medicine, a sound system for treating diseases and a legal system for supporting health protection were also built. For example, the Qin Dynasty recorded the prevention and treatment of malignant infectious diseases. According to the document Legal Q&A, if a prisoner suffers from a malignant infectious disease, he or she should be sent to a special quarantine area to prevent other people from being infected.²⁴ During the Tang Dynasty, the state attached great importance to the impact of urban sanitation on health. The Discussion on Tang Law stipulated that “If a prisoner defecates over a low wall, he shall be beaten with a stick 60 times. He who urinates shall be free from punishment. If his warden doesn’t forbid such deeds, he shall be subject to the same punishment.”²⁵ It can be seen that during this period, the state had an awareness of protecting people’s health by managing the public environment. In the Song Dynasty, the cities were prosperous with a large population. However, the public environment was relatively poor, with garbage accumulation, bad sewage discharge, and other prominent public health problems. As a result, the government set up special street cleaners to clean the river regularly. The Song Criminal Code also retained the provisions of the Tang Dynasty on urban governance. During the Ming and Qing dynasties, the rulers did not pay much attention to public health, which resulted in a period with a high incidence of epidemic diseases.²⁶ Although the Ming Law and the Qing Law retained the urban sewage treatment system established since the Tang Dynasty, there was no regulatory role for the government, and penalties for polluters were reduced. Throughout the ancient public health governance system of China, although it was a process of gradually strengthening and then weakening, it can be seen that ancient China had a positive attitude toward public health security and put it into practice, and made some achievements. In the 20th century, China gradually established a systematic public health governance system on the basis of learning from foreign experience, and entered a new era in terms of protecting people’s health. In this period, the Chinese government abandoned the original mode of temporary relief (such as temporary treatment after major disasters and epidemics), and established a scientific, regular and institutionalized health security system from top to bottom, creating the embryonic form of the modern public health system. For example, in 1905, the Qing government set up a Health Sector in the Patrol Police Department, whose functions included road cleaning, epidemic prevention, and planning, examining and approving health care regulations. This was the first specialized public health administrative agency in China.²⁷ In 1916, the Beiyang government promulgated the Regulations on the Prevention of Infectious Diseases, stipulating the systems of monitoring, reporting, quarantine and isolation of infectious diseases, laying a legal foundation for the prevention and treatment of infectious diseases in modern times. In 1928, the then government of China promulgated the Vaccination Regulations, which was the first time China established a compulsory vaccination system in the modern history of epidemic prevention. The standardized vaccination system effectively prevented the spread of smallpox, and this system has been preserved and continues to this day. In the 1920s and 1930s, in order to ensure food safety, urban sanitation, and entry-exit inspection safety, China formulated the Rules on the Prohibition of Dietary Preservatives, Rules on the Hygiene Management of Food and Beverage Manufacturing Sites, Regulations on the Cleaning of Contaminants, Implementation Rules of Regulations on the Prevention of Infectious Diseases, Regulations on Port Quarantine, etc. These laws and regulations highlighted China’s positive attitude toward a public health security system in modern times, and also provided experience for the continued construction of New China’s public health system.

 

In the early days of the People’s Republic of China, all areas of the country were in need of development. The legal system was not perfect, and there was little legislation on public health. Various infectious diseases and endemic diseases occurred frequently. Citizens’ right to life and health was seriously threatened. The overall health level of citizens was low. And the average life expectancy was only 35 years.²⁸ In terms of prevention and control of infectious diseases, in 1950, the state issued the Directive on the Prevention of Cholera, followed by the Interim Measures for Vaccination, the Directive on the Prevention and Control of Schistosomiasis, the Circular on Precautions for the Management of Leprosy, the Interim Measures for Transportation Quarantine and other documents in order to guide the scientific prevention and treatment of infectious diseases in all parts of the country. In 1955, the State Council issued the Measures for the Administration of Infectious Diseases, which classified all kinds of acute and chronic infectious diseases as Class A and Class B, a total of 18 kinds, and managed them according to law.²⁹ In terms of sanitation and epidemic prevention, limited by the lack of mature experience, the three levels of sanitation and epidemic prevention stations (provincial, municipal, and county-level) were built on the basis of borrowing from other countries’ epidemic prevention systems. Besides, the state also innovated local public health management methods (“elimination of four pests”), launched a patriotic health campaign, and put forward a work policy of “prevention first.” Since 1957, China’s health legislation has entered the preparatory stage, especially the adoption of the Frontier Health and Quarantine Regulations, which lays the foundation of specialized legislation for public health governance. In 1963, China issued the first departmental regulation of the drug administration — Several Provisions on Strengthening Drug Administration. These two key regulations officially opened the path for the standardized construction of China’s public health system.

 

Generally speaking, in this period, China’s public health management and system construction were not obvious, but the government attached great importance to citizens’ health security, mainly reflected in the medical security system. In the early days of New China, the state established the “labor insurance medical care” and “public medical care” systems in urban areas, which were essentially social benefits, and individuals did not need to pay. In rural areas, rural health centers were set up by means of “cooperation” and “crowdfunding” to ensure the health of farmers. Although this system did not have the nature of insurance, it still played a certain role in health security. So it was regarded as the “embryonic form” of the rural cooperative medical system. In 1955, with the promotion of agricultural cooperation, a cooperative medical and health care system with the nature of insurance officially emerged in rural China. A number of health care stations were built mainly in rural areas of Henan, Hebei, and Shanxi provinces.³⁰ After 1958, the cooperative medical system developed rapidly. The practical experience of some localities was affirmed by the central government, and all localities were required to refer to the practice.³¹ Since then, the cooperative medical system has become an important medical insurance system implemented in rural areas. By 1976, 90 percent of the production teams had established a relatively perfect rural cooperative medical system, which basically covered about 90 percent of the rural population in the country, and the health of farmers was effectively guaranteed. Although China’s economy was underdeveloped during this period, the country established a preliminary and nationwide public health system prototype through effective institutional arrangements, which greatly enhanced the basic health security of the people. At the end of 1970, China’s life expectancy was nearly 70 years old. The establishment of the public health system provided a basic framework for the development and improvement of the health security system and laid a foundation for the development of public health.

 

 

In 1978, the launch of reform and opening-up started a new era. The wave of marketization had a profound impact on China’s economic system. China’s legal system entered a period of reform and adjustment, and changes took place in the public health system in order to adapt to the economic development and regulate the adverse effects brought by the excessive development of other areas. During this period, a large number of laws, regulations, and documents, were introduced, especially the Constitution of the People’s Republic of China, which was passed in 1982. As the fundamental law of China, it constructively stipulated the construction of the public health system and the protection of citizens’ right to health. Article 21³² and Clause 1 of Article 26³³ of the Constitution define the state’s obligations in medical and health care, environmental and ecological protection, sports industry, prevention and control of pollution and public hazards, etc., from the national perspective, as well as the state’s leading power in public health governance. Clause 1 of Article 45³⁴ clarifies the right to medical and health services and the right to health enjoyed by citizens from the individual perspective. Clause 1 of Article 107,³⁵ Clause 2 of Article 111³⁶ and Clause 7 of Article 89³⁷ stipulate the responsibilities of governments at all levels and rural social autonomous organizations in public health governance. Under the guidance of the Constitution, the Drug Administration Law issued in 1984 specified the drug administration system in detail. The Frontier Health and Quarantine Law promulgated in 1986 was introduced to prevent and control the transnational spread of infectious diseases. The Law on the Prevention and Treatment of Infectious Diseases promulgated in 1989 stipulates that to prevent, control and eliminate the occurrence and spread of infectious diseases, and to protect people’s health and public health are the basic laws in the legal system of infectious disease prevention and treatment.³⁸ The Red Cross Law promulgated in 1993, although mainly promoting the humanitarian spirit, also provided for the protection of citizens’ right to health. In 1994, China promulgated the Law on Maternal and Child Health Care to guarantee the right to health of special groups (women and children). Subsequently, the Blood Donation Law issued in 1997 and the Law on Medical Practitioners issued in 1998 enriched the legislation in the field of public health and promoted the formation of the public health legal system. In practice, the sanitation and epidemic prevention agencies expanded from the previous three levels to four levels of disease prevention (national, provincial, prefecture-level and county-level). Meanwhile, maternal and child health institutions aimed at ensuring the right to health of women and children have also witnessed vigorous development, with the expansion of maternal and child health centers and the establishment of hospitals for women and children. When everything was developing in a good direction, the sudden outbreak of SARS in 2002 exposed the shortcomings of the newly formed public health system, such as the untimely submission of information, the inability of various departments to communicate effectively, the shortage of emergency reserves, and the inability of medical technology to quickly identify pathogens. Finally, SARS developed into an unprecedented public health crisis. It was the SARS pandemic that brought China’s public health governance into a new stage of development and raised public health to the height of national security. In 2003, the state promulgated the Regulations on Public Health Emergencies, attaching importance to the management of public health emergencies. In 2007, the state promulgated the Emergency Response Law to prevent, control and eliminate the hazards of public health emergencies through legislation, so as to protect people’s health and the safety of life and property.³⁹ The SARS pandemic promoted the reform of the public health system. First, it changed the original financing mode of public health, enabling the government to gradually increase financial investment (see Table 1) and increase the construction of public health infrastructure. For example, the state has invested a large number of funds to adjust and improve the disease prevention system. It has established the world’s largest and most extensive monitoring information system for infectious diseases and public health emergencies, shortening the reporting time of epidemics from five days to four hours, and increasing China’s health emergency response capacity by 25 times. Second, during this period, China established a medical security system that basically covered the whole population. In urban areas, the state formally proposed to reform the medical system for employees in the direction of medical insurance.⁴⁰ In view of the medical security for farmers, the National Rural Work Conference was held in October 2002, proposing the establishment of a new type of rural cooperative medical care based on the pooling of serious diseases.⁴¹ In January 2007, the new type of rural cooperative medical system was fully implemented nationwide. By the end of 2008, the participation rate of the system had reached more than 95 percent, almost realizing the universal coverage of rural residents. The adoption of the Social Insurance Law of the People’s Republic of China in 2010 marks that the social insurance system has officially embarked on a law-based road.

 

In general, the rapid development of the national economy during this period led to institutional adjustment and reform in various fields, including the field of health. First of all, the public health legislation changed from a one-sided and fragmented situation to being professional and standardized, and the public health legal system took shape. In particular, different professional fields in public health legislation basically issued governing laws, such as the Law on the Prevention and Treatment of Infectious Diseases and the Blood Donation Law mentioned above, laying a basic framework for the public health legal system to be more detailed in the future. Second, in terms of social security, a medical security system covering the whole population was basically established. The new rural cooperative medical system gradually took shape, and the health of urban and rural residents was effectively guaranteed. Third, the state increased the importance of public health governance and the prevention and treatment of major public health emergencies, and raised them to the level of national security, socialist construction and economic development. Fourth, after SARS, the public health system at this stage became increasingly mature, providing rich practical experience for the prevention and control of major epidemics in the future, and laying a solid legal, medical and strategic foundation for the comprehensive improvement of the public health system in the new era.

 

 

Engels pointed out that “The real content of all epoch-making systems is formed by the needs of the times that produced them. All these systems are based on the whole development of the country in the past.”⁴² Nothing is foreign to China, and the entry of socialism with Chinese characteristics into a new era is neither instantaneous nor arbitrary. Rather, the development of socialism with Chinese characteristics is based on the historic achievements made in the past five years since the 18th National Congress of the CPC.⁴³ As the starting point of entering a new era, the 18th National Congress of the CPC in 2012 is more about the future tense. It was not really so until the report to the 19th National Congress of the CPC officially pointed out that “After years of hard work, socialism with Chinese characteristics has entered a new era. This is a new historical positioning in China’s development.”⁴⁴ Since entering the new era, the construction of the public health system is being perfected. This is mainly reflected in the following aspects.

 

First, the continuous increase of the state’s public health investment makes basic public health security more accessible. In 2017, China’s GDP reached RMB 82.71 trillion or RMB 59,660 per capita, while the total investment in health expenditure reached RMB 5.26 billion, or RMB 3,783.8 per capita.⁴⁵ In 2020, the total national health expenditure was expected to reach RMB 7.23 trillion, of which: Government expenditure on health was RMB 2.2 trillion (30.4 percent), the social expenditure on health was RMB 3.03 trillion (41.8 percent), and the total individual expenditure on health was RMB 2 trillion (27.7 percent). The per capita total expenditure on health was RMB 5,146.4. Total health expenditure as a percentage of GDP was 7.12 percent.⁴⁶ In July 2021, the National Health Commission, the Ministry of Finance and the State Administration of Traditional Chinese Medicine jointly issued the Notice on Doing a Good Job in Basic Public Health Service Programs in 2021, which clearly stipulated that the per capita subsidy standard for basic public health services in 2021 would be RMB 79, with a steady growth of RMB 5. At a time when COVID-19 continued and public health expenditure was huge, the sustained and steady growth of China’s per capita public health expenditure was enough to prove that the country attached great importance to citizens’ health security. The amount of public health resources is another yardstick to prove the quality of public health governance. The number of medical and health institutions determines how convenient it is for citizens to seek medical treatment, and it is the basic facility for protecting citizens’ right to health. Health personnel are the fulcrum to support the operation of medical institutions. The more personnel the citizens can enjoy, the higher the quality of medical services. In order to protect citizens’ right to health, the government’s investment in health resources has increased year by year (see Table 2). By the end of 2021, China had 1.031 million medical and health institutions and 11.23 million medical and health workers.

 

Second, the continuous improvement of the public health legal system has laid a solid legal foundation for the improvement of the public health system. By March 11, 2022, the author had conducted a full-text search on PKULAW.CN with the keyword “public health”. In all, 179 laws, 363 administrative regulations, 4,983 departmental rules and 53 judicial interpretations containing the expression of public health were retrieved. Some intra-party laws and regulations, organization regulations and industry regulations also contain contents related to public health and the protection of public health rights. Moreover, there are many laws and regulations that are not specific to public health, but more or less involve public health provisions. Among them, 188 laws and regulations, departmental rules and judicial interpretations were promulgated or amended in 2017. For example, the Red Cross Law was amended in 2017 to focus more on humanitarian assistance in public health emergencies. In the Voluntary Service Regulations issued by the State Council in August 2017, voluntary services include those in public health incidents. The Opinions of the General Office of the State Council on Deepening the Coordination between Medical Education and Further Promoting the Reform and Development of Medical Education released in 2017 mentioned the cultivation of professional public health talents six times. In 2018, 172 laws, regulations and departmental rules on public health were revised and issued. In particular, the adoption of the Law on the Promotion of Basic Medical and Health Care in 2019 further improved the public health legal system. Under the influence of this law, the number of documents related to public health legislation increased to 390 in 2020, which is closely related to the promulgation of the Law on the Promotion of Basic Medical and Health Care. In April 2020, the state issued the Report of the Commission for Legislative Affairs of the Standing Committee of the National People’s Congress on the Relevant Situation and Work Plan of the Legislative Revision Work on Strengthening the Legal Protection of Public Health, emphasizing the need to improve and strengthen the legal protection system of public health. In April 2021, the state promulgated the Rural Revitalization Promotion Law, which stipulates that the construction of the rural public health system should be strengthened. In August 2021, the Medical Practitioners Law made eight references to public health, aimed at improving the quality of public health services from the staff of public health practitioners. Since the founding of the PRC, China’s public health legislation has gradually formed a crisscrossing public health legal system (see Figure 1) led by the Constitution and based on the Law on the Promotion of Basic Medical and Health Care, which has effectively contributed to the improvement of the public health system.

 

Third, the continuous improvement of the prevention and control system of unexpected public health incidents has promoted the improvement of the public health system. The outbreak of COVID-19 has once again challenged China’s public health system. In the early stages of the pandemic, inadequate risk assessment capacity, rigid emergency management mechanisms, and a shortage of medical resources made it difficult to contain the spread of the pandemic. China’s public health management is rapidly adjusting and moving toward a new stage, establishing a modern public health system. It emphasizes the idea of “people-centered” human rights protection, gives priority to the protection of people’s health, and especially emphasizes the rule of law of the public health system. The promulgation of the Law on the Promotion of Basic Medical and Health Care has boosted the legalization process of public health and provided orderly legal guidance for pandemic prevention. For example, Articles 19, 20 and 21 of the second chapter of the Law, Basic Medical and Health Services, stipulate the overall prevention and control system for public health emergencies. Compared with the previous public health systems, this system is more detailed, including organization and management, team building, early warning, planning, material storage, hygiene investigation and disposal, medical treatment, psychological treatment, personnel training, scientific research and other aspects. Meanwhile, it creates a stronger capacity for the prevention and treatment of major epidemics and emergency response. It is precisely this gradually improved legal system of public health that has helped China stabilize the pandemic at a time of global stress, which vividly reflects China’s concept of “people-centered” human rights protection.

 

In general, since the new era, China’s public health system has been moving toward the rule of law. The construction of the legal system in the field of public health is based on the legal guarantee system of public health, which is an important systematic project. The legal guarantee system of public health is the normative basis and logical starting point of the legal system for public health. As mentioned above, a complete legal guarantee system of public health is led by the Constitution, with theLaw on the Promotion of Basic Medical and Health Care at the core. Together with various special laws, regulations and measures in the field of public health, they complement each other and form a relatively stable static legal sequence with balanced distribution. The rule of law of public health attaches more importance to dynamic social governance. It emphasizes the concept of the rule of law throughout all aspects of legislation, enforcement, judicature and law-abiding behavior, so as to balance rights and power, freedom and restriction. The rule of law system is a platform to revitalize the public health legal guarantee system. It gives full play to the legal value, and completes self-repair through the dynamic communication among the public health legal guarantee, the rule of law implementation and the rule of law supervision (see Figure 2).

 

 

Throughout the evolution of New China’s public health system over the past 70 years, China’s public health system has been constantly revised and gradually improved under the leadership of the Party and the state. No matter the initial stage, the reform and development stage or the improvement stage, each stage aims to create a good public health environment to improve the health security of citizens. Tracing the evolution of our public health system, we can see that it always revolves around the following two-fold logic.

 

 

First, the right to health that public health refers to. The complexity of public health itself determines that the rights it contains are complex. If, according to the division of medical disciplines, public health is subordinate to medicine, and what medicine wants to protect is citizens’ right to life and health, then can we consider public health protection as a sub-right under the right to health? If defined from the discipline of law, public health belongs to the basic public health service, which is provided free of charge by the state and is within the scope of the right to social security. But it can also be seen that the core interest of public health protection is people’s health, and the purpose of public health is to ensure the realization of the right to health.

 

Historically, the establishment of the right to health can be described as “radical.” The trampling over human life during World War II made people rethink the essence of what it is to be “human” and the meaning of life and health. Since then, the protection of the right to health has gradually become official. In 1946, the Constitution of the World Health Organization made it clear for the first time that “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”⁴⁷ The Charter’s definition of health includes physical and mental health, and also social adaptation and the attainment of full well-being. This is undoubtedly beyond the hope for health in those days. In 1948, the Universal Declaration of Human Rights was adopted, but there was no independent provision on the right to health. Its statement on health security is: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in the circumstances beyond his control.”⁴⁸ Compared with the Constitution, this expression is much more conservative, probably because the drafting group combined the social, economic, scientific and medical developments at that time. In order to convert the human rights listed in the Universal Declaration of Human Rights into practical rights, the UN Commission on Human Rights began to draft the International Covenant on Human Rights in 1951.⁴⁹ However, due to the great differences between the two powers of the United States and the Soviet Union at that time, as well as the huge gap in the development levels of all countries in the world, the International Covenant on Human Rights consisted of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 12 of the International Covenant on Economic, Social and Cultural Rights stipulates that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,” and it stipulates the measures that states parties should take. In May 2000, in its general comment No.14 on Article 12 of the International Covenant on Economic, Social and Cultural Rights, the United Nations Committee on Economic, Social and Cultural Rights in Geneva introduced the concept of the right to health — the right to the highest attainable standard of health.⁵⁰ This general comment is the most detailed provision of the right to health on a global scale to date. Since then, the right to health set out in other human rights conventions has been largely modeled on, and does not go beyond, Article 12 of that Covenant. For example, Paragraph 1 (e) (f) of Article 11 and Article 12 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women address women’s rights to social protection, to health and safety at work and to reproductive health services. Article 17 of the Convention on the Rights of the Child in 1989 stipulates that mass communication should conform to the development of children’s physical and mental health. This provision also applies to the 21st century, when science and technology are developing rapidly. Article 24 stipulates the standards of children’s right to health and the steps to realize it. In 2006, Article 25 of the Convention on the Rights of Persons with Disabilities stipulated that persons with disabilities should enjoy the right to the highest attainable standard of health without discrimination on the basis of disability. Through the continuous optimization of health provisions at the international level through international conventions and a series of international documents, a clear and comprehensive concept of the right to health has gradually taken shape at the level of international law, laying down the status of the right to health as a basic human right in international human rights law.⁵¹

 

Second, priority should be given to rights, while also considering obligations. In the field of public health, more emphasis is placed on the protection of rights because it is actually a value orientation of “priority should be given to rights, while also considering obligations.” This is not inconsistent with the unification of rights and obligations. As Shapiro realized, it makes no sense to build a theory of rights and obligations without considering how people actually perform them.⁵² Therefore, in the analysis of the rights and obligations of citizens in public health incidents, it is only necessary to investigate what rights citizens most hope to have in such incidents.⁵³ Take the COVID-19 pandemic as an example. What do citizens want most in a pandemic? What kind of life do citizens want to achieve or what do we least want to happen? There is no doubt that health and life come first. The CPC has throughout remained committed to the dynamic zero-COVID policy, and has carried out a people’s war, an all-out war, and an interdiction war against the pandemic to protect people’s lives and health to the greatest extent possible. This has been a practical response to ensure that “priority is given to rights, while obligations are also considered.” It is not difficult to see such value orientation in the development of public health legislation in China. For example, the Law on the Prevention and Treatment of Infectious Diseases, adopted in 1989, stipulates the state’s responsibilities in the prevention of infectious diseases, the reporting, notification and publication of the epidemic, the control, supervision and management of the epidemic and the protection measures, while Article 77 of the law stipulates the obligations to be borne by citizens.⁵⁴ In the Regulations on Public Health Emergencies issued in 2003, almost the entire Regulations are about the responsibilities of governments at all levels and relevant departments. Articles 51⁵⁵ and 52⁵⁶ stipulate the legal responsibilities of citizens who do not cooperate in epidemic prevention. The Law on the Promotion of Basic Medical and Health Care, passed in 2019, consists of nine chapters and supplementary provisions, most of which define the state’s responsibilities in guaranteeing citizens’ right to health. For example, basic health services are provided free of charge by the state, and the state bears most of the responsibility for ensuring the supply of medicines, health promotion and funding. Clause 1 of Article 69⁵⁷ stipulates that citizens are the first person responsible for their own health security, which clarifies the obligations of citizens. It can be seen from these three important legal texts on the prevention and control of emergent public health incidents that the state always follows the theoretical logic of “priority should be given to rights, while also considering obligations” in the top-level design of public health governance and protection of citizens’ right to health. No matter the static legal texts or the dynamic practice and implementation, they emphasize the behavior paradigm that the state fulfills obligations and citizens enjoy rights. 

 

The priority of rights over obligations does not mean the recognition of the fallacy of “civil rights standard.” First, starting from the nature of public health governance, the health rights and obligations enjoyed by citizens in the field of public health, as a pair of basic categories, naturally pursue the unity of rights and obligations. Just that it is more inclined to protect rights as a logical starting point to construct a public health rule of law system in value judgment and the choice of practice focus. Second, in terms of the relationship between rights and obligations, citizens should strengthen their awareness of rights, take the exercise of rights as a response to the active performance of obligations by the state/government, and constantly improve their awareness and knowledge of rights, and ability to execute rights. Meanwhile, those who fail to perform their obligations should bear the corresponding legal consequences. Third, from the value source of civil rights and obligations, citizens bear the double obligation norm. One is the basic legal obligations stipulated by laws and regulations. The other is, as public health itself has the nature of public welfare, with stronger morality, citizens also have to abide by the moral obligations of society. The logical sources of different obligations are different. The logic of rule of law comes from the spirit of rule of law, while the logic of morality must follow social rules to avoid damage to public health. It is this kind of obligation norm that guarantees that citizens can really enjoy their rights and ensure the realization of their rights.

 

 

In public health governance, there is always an inevitable tension between voluntary and compulsory, between civil liberties and public health, and between individual health and public health.⁵⁸ In order to protect the public interest, it is necessary to limit individual freedom and rights at certain special times, but such restrictions must conform to the norms of statutory law.⁵⁹

 

In the field of public health, people’s right to health has the realistic possibility to regulate state power. First, from the legality of state power, it comes from the authorization of citizens and legal provisions. The subject, content, implementation method and responsibility of state power have laws to abide by. Second, from the public nature of state power, state power is the dominant force for state governance, protection of citizens’ rights and orderly operation of society. We should avoid the abuse of state power and make reasonable use of state power. Third, from the effectiveness of the state power, it comes from the people’s authorization and top-down power-granting methods. “Execution” is the main line running through the rights of citizens and the power of administrative organs to ensure the effective execution of state power. These characteristics of state power ensure the stable operation of the country, as well as the leadership and execution of the government. Therefore, the standardized operation of state power must emphasize power limitation and right guarantee, and form a balance mechanism between rights and obligations, power and rights, and power and responsibilities. Respecting and protecting citizens’ right to health is conducive to restricting state power and curbing the abuse of state power from the source. On the contrary, it is precise because the right has the realistic possibility to regulate the state power and curb the excessive execution of the state power, and the protection of public health and citizens’ right to health can be realized.

 

 

The report to the 20th National Congress of the CPC clearly points out that we should give strategic priority to ensuring people’s health and improve policies to promote people’s health. Improving the public health system is an important part of protecting people’s health. Although China’s public health legal system has entered a new stage of comprehensive improvement after the introduction of the Law on the Promotion of Basic Medical and Health Care, there is still great room for progress concerning public health legislation in the internal coordination of the legal system. In particular, weak links in China’s public health sector have been exposed in the prevention and control of the COVID-19 outbreak.⁶⁰ Therefore, the next stage of the construction of the public health legal system aims to further optimize the existing problems. For example, we should improve the mechanism for major public health emergencies, strengthen the establishment of a scientific, legal system for public health, and at the same time focus on cultivating the public’s conscious awareness of taking responsibility for their own health, so that they can exert their subjective initiative in their own health protection. This will foster a more scientific, improved public health system suited to our national conditions.

 

 

The rule of law in public health is the foundation of public health and the general basis for citizens’ health protection. In the face of sudden public health incidents, although the rule of law cannot directly combat the disease, it provides a solid institutional guarantee for resolving the public health crisis through the regular and stable legal implementation mechanism, and exerts a broader and more far-reaching impact than treatment alone. The primary foundation for the rule of law in relation to public health is the establishment of the legal framework. According to the traditional hierarchy of legal effects, public health legislation usually includes: The public health content in the Constitution, the basic law of public health, and the special public health legal norms. This is a typical model of public health legislation in various countries at present, and China’s public health legislation also presents such a vertical structure. For example, the Constitution, is the commander-in-chief of the public health legal system. The Constitution does not explicitly stipulate public health and the right to health, but through its interpretation in the system, it is not difficult to see that it establishes the basic framework for the protection of public health and the right to health. This top-down hierarchy of effectiveness clearly highlights the coherence between public health laws and provides clear guidance to legislators, law enforcement officials and the judiciary. However, the simple vertical logic can only divide public health laws into three layers, and cannot effectively connect the internal logic between them. For example, in practice, many special laws and regulations conflict with each other. Therefore, it is necessary to embed horizontal logic in the vertical logic. The horizontal logic of public health law can consist of four areas: Public health service, health promotion, public health supervision and public health emergency management. This horizontal logical architecture has the external perimeter performance to effectively include various details and the internal system performance to effectively connect various parts. Together, they constitute a complete legal system of public health. And when separated, each module is independent. This can solve the problem of internal and external conflicts of numerous special laws and regulations to the greatest extent. Therefore, if the two modes can be combined with the best of them being used, and if the vertical logic is taken as the trunk and horizontal logic as branches, building a circular and interconnected network, then it can realize the effective circulation of the system itself, and better advance the modernization of China’s public health system.

 

 

With the rapid development of the global economy and increasingly convenient transportation, public health security and the prevention and control of major public health emergencies face more daunting challenges (such as faster spread, wider coverage and greater impact). The report to the 20th National Congress of the CPC clearly calls for improving the capacity for early detection of major epidemics, strengthening the system for prevention and treatment of major epidemics and strengthening the capacity for emergency response, and effectively curbing the spread of major infectious diseases as quickly as possible. Therefore, it is urgent to further improve the emergency response mechanism.

 

First, we should establish an emergency mechanism for coordinated governance of multiple players. China’s present emergency management mechanism for public health incidents is designed based on the idea of an omnipotent government and mainly depends on the action of the government and relevant departments.⁶¹ Because of the emergency nature and harmfulness of public health emergencies, the introduction of other participants can effectively unload their excessive pressure and revitalize the entire mechanism. Article 11 of the Emergency Response Law stipulates that “Citizens, legal persons and other social organizations have the obligation to participate in emergency response.” Take the prevention and control of COVID-19 as an example. In addition to the active response of the state/government, social organizations, communities and citizens themselves have played an irreplaceable synergistic role in the prevention and control of the pandemic. In particular, the innovative mechanism of mass prevention and control has played an important role in preventing the spread of the pandemic. Therefore, in the improvement of the mechanism for public health emergencies, a government-led collaborative governance mechanism participated in by multiple players can solve the crisis more efficiently and better protect the life and health of citizens.

 

Second, we should establish and improve a scientific and professional risk assessment and early warning mechanism with the unification of rights and obligations. Although China’s prevention and control measures have achieved remarkable results during this pandemic, the overall prevention and control were in a passive state at the beginning of the outbreak, which is related to the imperfect risk assessment and early warning mechanism. Due to the great uncertainty of a major public health emergency, local governments need to be extremely perceptive to conduct a risk assessment and develop response plans in the first place. First, this requires a skilled team of experts to make professional decisions, seize the critical period of pandemic prevention and control, and eliminate the possibility of infection at the source. Second, we need to improve the laws and regulations, and give the local governments clear authority and responsibility for incident early warning. Finally, there should be a complete fault-tolerant and error correction mechanism to enable the competent department to dare to and be able to act, and act in a timely manner. Improving the risk assessment and early warning mechanism of major public health emergencies can solve the public crisis at the source and guarantee citizens’ health.

 

 

Article 6⁶² of the Law on the Promotion of Basic Medical and Health Care stipulates that the concept of health should be integrated into all policies. Health in All Policies (HIAP) is also an important concept constantly advocated and promoted by the international health cause. The 1978 Declaration of Alma-Ata states that “Everyone should enjoy primary health care.” The Adelaide Statement in 2010 emphasizes that cooperation between the health sector and other sectors in policy development is essential if the government is to better achieve its goals and improve human health. In June 2013, the Eighth World Conference on Health Promotion adopted the Health in All Policies (HIAP) Framework for Country Action, calling on countries to pay attention to the social determinants of health and adopt the HIAP strategy.⁶³ The expansion of the concept of health means that more and more areas (such as the economy, environment, and science and technology) are related to health care, and in turn, the policies in these areas also affect health care. Therefore, integrating the concept of health care into policies in other areas is a key step in promoting better health. The key to implementing HIAP is to popularize the concept of health. Due to the narrow understanding of public health that public health is only the responsibility of the health sector and has little to do with other institutions, social organizations and people themselves, it is difficult for people to upgrade their recognition. Therefore, there is an urgent need to strengthen health education. The target of health education is the staff of various departments and the citizens themselves. Citizens are both victims and participants in a pandemic. Through health promotion, the government can raise public awareness of pandemic prevention and effectively stop the rapid spread of a pandemic. Health promotion and education are, to a large extent, responsible for the formation of this favorable anti-pandemic situation. Next, in the process of perfecting the public health system, the government can build a special health education system on moving the steps of emergency management forward. In terms of health education and cultivation, it is necessary to increase the investment in health education, improve the health education institutional system, and carry out health education courses in schools at all levels, especially among primary and secondary school students. The health awareness should be established from childhood. In recent years, with the change in the spectrum of diseases, the state has shifted the emphasis of health education to chronic and serious diseases, ignoring the crisis of major infectious diseases that human beings often suffered in the early days. COVID-19 has served as another warning in a tragic way. It has never disappeared. Instead, because of economic development and convenient transportation, a pandemic is at a higher risk of being faster-spreading, global and normal. The prevention and control of major new pandemics should not rely solely on vaccines. It is more important to strengthen health education, change the recognition of health, live in harmony with nature, and raise the public’s awareness of emergency response and prevention and control from the source. Implementing the concept of HIAP and cultivating citizens’ health awareness is a new way to protect citizens’ right to health and the only way to promote the realization of the right to health.

 

 

People’s health is an important symbol of a prosperous nation and a strong and powerful country. The establishment of New China’s public health system has been overcoming hardships and constantly improving through continuous exploration and unremitting efforts. It has incorporated the concept of respecting and protecting citizens’ right to health into the track of national public health governance and practically enabled citizens’ right to restrict state power. The review of the construction process and logical progression of the public health system in the past 70 years can provide experience for the improvement of the public health system in the future, and provide a theoretical and practical basis for further effective discussion on the protection of the right to health. In the future, in a rapidly changing modern risk-based society, new challenges and demands have been raised for the protection of the right to health. Ensuring the health of all people requires the active commitment of countries and the solidarity of the world. The community of common health for mankind proposed by General Secretary Xi Jinping is the best choice for fighting the pandemic and for the protection of human rights. All countries in the world should work together to build a sound, efficient and accessible world public health system to protect human life and health.

 

(Translated by CHEN Feng)

 

* FU Zitang ( 付子堂 ), Professor at the School of Administrative Law, Southwest University of Political Science and Law.

 

** PANG Xinyan ( 庞新燕 ), Ph.D candidate at the Institute of Human Rights, Southwest University of Political Science and Law. This paper is a phased result of the key project of the National Social Science Fund titled “Review and Analysis of the Research of Jurisprudence in China in the Past 70 Years” (project approval No. 19AFX002) and the student research project of Southwest University of Political Science and Law titled “Law on the Promotion of Basic Medical and Health Care and New Progress in the Protection of the Right to Health” (project approval No. 2021XZXSZC).

 

1. Fu Zitang, “Legal System for SARS Crisis and Public Health Emergencies,” Journal of Southwest University of Political Science and Law 4 (2003): 5.

 

2. Wiliam McNeill, Plagues and Peoples, Yu Xinzhong and Bi Huicheng trans. (Beijing: China Citic Press, 2018), 237.

 

3. Shu Defeng, A New Theory on the Right to Health (Jinan: Jinan Publishing House, Shandong City Publishing and Media Group, 2021), 6.

 

4. Jiang Yue and Lin Zhiqiang, “The Origin and Development of the Right to Health,” Academic Forum 4 (2007): 144-148.

 

5. John. M. Kelly, A Short History of Western Legal Theory, Wang Xiaohong trans. (Beijing: Law Press · China, 2005), 84.

 

6. F. D. Wolinsky. The Sociology of Health: Principles, Practitioners, and Issues, Sun Muhong trans. (Beijing: Social Sciences Academic Press, 1999), 6.

 

7. Ibid.

 

8. Shen Weixing, “Building the Rule of Law in Public Health: Significance, Value and Mechanism,” Jinan Journal (Philosophy & Social Science Edition) 1 (2022): 14.

 

9. George Rosen, A History of Public Health, Huang Peiyi trans. (Nanjing: Yilin Press, 2021), 97.

 

10. Ibid., 143.

 

11. Huang Jiasi, “A Brief Discussion on the Complexity and Philosophical Thinking of Medicine,” Medicine & Philosophy 1 (1980): 2.

 

12. Jack Donnelly, Universal Human Rights in Theory and Practice, Wang Puqu et al. trans. (Beijing: China Social Sciences Press, 2001), 99.

 

13. Qi Yanping, “Harmonious Human Rights: Mutual Promotion of Chinese Spirit and Human Rights Culture,”Jurists Review 2 (2007): 27-35.

 

14. Qian Chengdan and Chen Xiaolv, Between Tradition and Change: Tracing the Source of British Cultural Patterns (Hangzhou: Zhejiang People’s Publishing House, 1991), 114.

 

15. Qu Xiangfei, How Far Are Human Rights from Us: The Concept of Human Rights and Its Evolution in Modern China (Beijing: Tsinghua University Press, 2015), 298-299.

 

16. Chen Yunliang, “Promoting the Transformation from the Public Health Legal System to the Public Health Rule of Law System,” Law Science 9 (2021): 18-19.

 

17. Wang Yu et al., Public Health in China (Beijing: Peking Union Medical College Press, 2013), 38-70.

 

18. Vgl. Martin Rath, Im Wendekreis der Aufopfe rung, URL:https://www.lto.de/recht/feuilleton/f/bgh-re-chtsgeschichte-schadensersatz-impfung-arzthaftungsrecht/.(abgerufen am 10.juillet 2020).

 

19. Zhao Haohua, “Research on the Change of European Welfare State Systems” (PhD diss., Heilongjiang University, May 2018), 17.

 

20. Robert E. Goodin, The Oxford Handbook of Comparative Politics, Tang Shiqi et al. trans. (Beijing: People’s Publishing House, 2016), 324.

 

21. The Act is now codified in the United States Code, and the complete Act can be found in Chapter 6A (Public Health Service) of Title 42 (Public Health And Welfare) of the United States Code.

 

22. Rosen G, A History of Public Health (Baltimore: Johns Hopkins University Press, 2015), 106.

 

23. Gong Shengsheng, “The Changing Law of the Spatial and Temporal Distribution of Epidemic Disease Disasters in China,” Acta Geographica Sinica 6 (2003): 872-875.

 

24. Liu Jigang, “On Epidemic Diseases in the Pre-Qin Period,” Medicine & Philosophy 3 (2007): 66.

 

25. Cao Manzhi, Translation and Annotation of Discussion on Tang Law (Changchun: Jilin People’s Publishing House, 1989), 886.

 

26. Wang Chenguang, Cornerstone of Health Rule of Law: Origin, Theory and System of the Right to Health(Beijing: Peking University Press, 2020), 91.

 

27. Ibid., 92.

 

28. Zhao Yanan, “Discussion on the Construction Path of China’s Public Health System,” Chinese Journal of Public Health Management 2 (2022): 152-156.

 

29. Li Honghe, “Establishment of National Sanitation and Epidemic Prevention Mechanism in New China,”Guangming Daily, March 11, 2020.

 

30. Xu Zhengzhong, Health Insurance: System Selection and Management Mode (Beijing: Social Sciences Academic Press, 2002), 234.

 

31. In November 1959, the Ministry of Health held a National Conference on Rural Health in Jishan County, Shanxi Province. After the meeting, participants submitted to the Central Committee of the Communist Party of China “A Report on the Situation of the National Rural Health Conference in Jishan, Shanxi” and its annex “Opinions on Several Issues Concerning the Health Work of People’s Communes.” The documents pointed out that “About the people’s commune’s medical system, there are two main forms at present: one is that he who sees the doctor pays; one is to implement the collective health care system of people’s commune members. According to the current level of development of productive forces and the public consciousness and other realities, it is appropriate to implement the latter.” In February 1960, the Central Committee of the CPC approved the report and its annex, requiring local governments to implement them by reference.

 

32. Article 21 of the 1978 Constitution stipulates that “The state develops medical and health services, develops modern medicine and traditional Chinese medicine, encourages and supports the establishment of various medical and health facilities by rural economic collectives, state-owned enterprises and institutions and neighborhood organizations, and carries out public health activities to protect the people’s health. The state develops sports and carries out mass sports activities to improve the people’s health.”

 

33. Clause 1, Article 26 of the Constitution stipulates that “The state protects and improves the living environment and the ecological environment, and prevents and controls pollution and other public hazards.”

 

34. Clause 1, Article 45 of the Constitution stipulates that “Citizens of the People’s Republic of China have the right to material assistance from the state and society when they are old, ill or unable to work. The state develops social insurance, social relief and medical and health services necessary for citizens to enjoy these rights.”

 

35. Clause 1, Article 107 of the Constitution stipulates that “Local people’s governments at or above the county level shall, within the limits of their powers as prescribed by law, administer the administrative work of the economy, education, science, culture, public health, sports, urban and rural development, finance, civil affairs, public security, ethnic affairs, judicial administration and family planning within their respective administrative areas; issue decisions and orders; appoint or remove, train, assess, reward or punish administrative personnel.”

 

36. Clause 2, Article 111 of the Constitution stipulates that “The residents and villagers committees set up committees for people’s mediation, public security and public health to handle public affairs and public welfare undertakings in the areas where they live, mediate civil disputes, assist in maintaining public order, and report the opinions and demands of the masses and make suggestions to the people’s government.”

 

37. Article 89 (7) of the Constitution stipulates that “The state leads and administers the work of education, science, culture, health, sports and family planning.”

 

38. Qiu Zhaoji, “COVID-19 and China’s Infectious Disease Prevention Law: Challenges and Response,” Theoretical Exploration 1 (2021).

 

39. Wei Yongli, Wei Hancui and Luo Yanping, “Exploration on the Construction of the Response Mechanism for Public Health Emergencies in Libraries,” Library and Information Service, Supplement No. 1 (2015): 1.

 

40. In March 1988, with the approval of the State Council, led by the Ministry of Health and with the participation of ministries such as the Ministry of Finance, the Ministry of Labor, the Ministry of Personnel, the State Commission for Restructuring the Economic System and the National Federation of Trade Unions, a Leading Group for the Reform of the State Medical System was established and a draft Ideas for the Reform of the Workers’ Medical Insurance System was drafted, indicating the direction for the reform of the workers’ medical system: gradually establishing a multi-form and multi-level medical insurance system for workers, which suits China’s national conditions, with a high degree of socialization, and whose costs are reasonably borne by the state, units and individuals.

 

41. the Decision of the CPC Central Committee and The State Council on Further Strengthening Rural Health Work (Zhongfa [2002] No.13).

 

42. Central Compilation and Translation Bureau, Collected Works of Karl Marx and Frederick Engels, vol. 3 (Beijing: People’s Publishing House, 1960), 544.

 

43. Cai Lili, “Deeply Understanding the Three Dimensions of Socialism with Chinese Characteristics Entering a New Era,” Journal of South-Central University for Nationalities (Humanities and Social Sciences) 10 (2021): 10.

 

44. Xi Jinping, “Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era — Report to the 19th National Congress of the Communist Party of China,” Research on Ideological and Political Work 11 (2017): 35.

 

45. Yang Weizhong, “Achievements of Public Health in China in the Past 70 Years,” Modern Preventive Medicine 16 (2019): 2882.

 

46. Statistical Communiqué of China’s Health Development 2020, website of the Central People’s Government of the People’s Republic of China, accessed March 30, 2022, http://www.gov.cn/guoqing/2021-07/22/content_5626526.htm.

 

47. World Health Organization, Constitution of the World Health Organization, Preamble.

 

48. United Nations, Universal Declaration of Human Rights, 1948, Article 25.

 

49. Wang Chenguang, Cornerstone of Health Rule of Law: Origin, Theory and System of the Right to Health, 37.

 

50. Committee on Economic, Social and Cultural Rights, General Comment No.14, 2000.

 

51. Shu Defeng, “Jurisprudential Research on the Right to Health” (PhD diss., Wuhan University, May 2013), 26.

 

52. Ian Shapiro: The Moral Foundations of Politics (Shanghai: Shanghai SDX Joint Publishing Company, 2006), 55-61.

 

53. Ouyang Jinggen, “The Power of the State and the Rights and Duties of Citizens in Responding to Public Health Incidents,” Journal of Renmin University of China 2 (2010): 137.

 

54. Article 77 of the Law on the Prevention and Treatment of Infectious Diseases stipulates that any unit or individual that, in violation of the provisions of this Law, causes the spread of an infectious disease and causes damage to the life or property of another person shall bear civil liability according to law.

 

55. Article 51 of the Regulations on the Public Health Emergencies stipulates that, in the course of emergency handling, if the units or individuals concerned fail to perform their reporting duties in accordance with the provisions of these Regulations, conceal, delay or make false reports, obstruct the emergency handling personnel from performing their duties, and refuse to allow the competent department of public health under the State Council or the specialized technical institutions designated by other relevant departments to enter the scene of the emergency, or if anyone fails to cooperate with the investigation, sampling, technical analysis and inspection, administrative or disciplinary sanctions shall be imposed on the persons responsible according to law. Those who violate the Law on Penalties for Administration of Public Security and constitute acts violating the administration of public security shall be punished by public security organs according to law. If the case constitutes a crime, criminal responsibility shall be investigated according to law.

 

56. Article 52 of the Regulations on Public Health Emergencies stipulates that whoever, during the occurrence of an emergency, spreads rumors, gouges prices, deceives consumers and disturbs social or market order shall be given administrative punishment by the public security organ or the administrative department for industry and commerce according to law. If the case constitutes a crime, criminal responsibility shall be investigated according to law.

 

57. Clause 1 of Article 69 of the Law on the Promotion of Basic Medical and Health Care stipulates that citizens are the first person responsible for their own health. They should establish and practice the concept of health management responsible for their own health, take the initiative to learn health knowledge, improve health knowledge, and strengthen health management. The Law encourages family members to care for each other and form a healthy lifestyle that suits their own and family characteristics.

 

58. Lawrence O. Gostin, A Theory and Definition of Public Health Law, Maxwell J. Mehlman et al., The Field of Health Law: Its Past and Future, Tang Chao et al. trans. (Beijing: China University of Political Science and Law Press, 2012), 240-273.

 

59. Ibid.

 

60. Li Wei, “On the Improvement of Rule of Law in China’s Public Health Emergency Response: Thoughts Based on COVID-19,” Journal of Soochow University (Law Edition) 3 (2020): 50-58.

 

61. Sun Ju, “COVID-19 Promotes the Modernization Reform of Public Health Governance,” People’s Forum, June vol. II (2020): 38-41.

 

62. Article 6 of the Law on the Promotion of Basic Medical and Health Care stipulates that “People’s governments at all levels shall give strategic priority to the development of people’s health. We should incorporate health into all policies, give priority to prevention, improve the working system of health promotion, organize and implement plans and actions for health promotion, promote national fitness, establish a health impact assessment system, and include the improvement of citizens’ major health indicators in the assessment of government goals and responsibilities.”

 

63. Yuan Yanfei et al., “The HIAP Theory and International Experience,” Chinese Journal of Health Education 1 (2015): 56-59.