Research On Constitutional Protection Of The Right To Health

This paper studies right to health from the angle of constitutional jurisprudence,analyzes intention and extension of the concept of the right to health, and the development trend,the valuation, assurance benchmark and assurance modes of the constitution benchmark for guarantee of right to health, and analyzes the road to constitutional guarantee to the right to health in our country from aspects of legislation and judicial of right to health guarantee. The paper launches the research from the following aspects:The basic research problem of right to health. This paper studies the concept, property, subject, and content of the right to health, emphases on analyzing its intention and extension, combs the development trend of right to health from western and Chinese angle, promotes the development of the theory level of the right to health, helps the construction to the theoretical framework of the right to health, and lays a foundation for more solutions to new problems.Constitution guarantee value of the right to health. From the perspective of legal theory basis and source, the article puts forward the ethical value, social value and economic value of the constitution guarantee of the right to health. The ethics value is to maintain the dignity of people, social value is to promote social justice, and economic value is to promote economic development.Constitution guarantee mode of the right to health. The Article proposed the constitutionalism guarantee pattern in the world is mainly divided into four types such as the target type, the rights and obligations type, principle type and transformational type, constitutional justice guarantee pattern is divided into 3 types such as direct judicial guarantee type which sets the right to health as the constitutional basic right, indirect judicial guarantee type through the application and explanation of the freedom in the constitutional norms, and the judicial guarantee type which guarantees the right to health through application or reference to the international law. The author thinks that the constitutional guarantee of the right to health can’t leave medical security system as the right to health in the form of constitutional system.The benchmarks for guarantee of the right to health. The theoretical benchmarks for guarantee of the right to health are divided into two levels, a minimum benchmark and ideal benchmark. The two levels are the floor and ceiling for the constitution guarantee of the right to health, the former of which refers to the floor level standard of general application for all countries and regions and the latter of which can be gradually implemented standards. The legal benchmark of the right to health has the core content theory and the specific indicator theory, the former of which discusses the quality of the constitution guarantee the right to health and the latter of which discusses the quantity.The constitution guarantee of the right to health in our country. From the constitutionalism level, the constitution of our country has no specific provision that sets the right to health as a fundamental right, and the only way to fundamentally protect the right to health of citizen is to let right to health enter into the constitution and become the effective legal. In terms of the right to health standard, constitution law and administrative law are non-confrontational interaction relations, and administrative supply is a beneficial way for constitution guarantee of the right to health. From the constitutional justice level, the justiciability problem of the right to health has been debated in academic circles, and in terms of compulsory hierarchy theory, health is chargeable not only in level of respect and protection but also in the level of implementation. The reason why some scholars think the right to health is not chargeable or chargeable in low degree is that the justiciability of the right to health is influenced by many factors, mainly including the classification method of right, resource constraints, the fuzziness of specification, the limitation of judicial ability, and political legitimacy, etc. In our country, the constitutional justice remedy of health to right is just in initial stage, and we can try to develop our constitutional justice remedy ways through establishing unconstitutional review system in the form of lawsuit, expanding the scope of the judicial protection by extending "constitution explanation", stetting up commonweal litigation system of right to health,, and taking positive constitutional remedy, etc.