The Jurisprudential Research On The Right To Health

Health is a prerequisite and an important goal of economic and social development, which lays a firm foundation for overall human liberation. To protect the right to health is not only the social bottom line for citizen to live with dignity in a certain society, but also a key element of eternal pursuit of happiness for human beings. As one of the basic human rights, the right to health has been widely accepted in international and domestic laws. Especially since the beginning of the21st century, the protection of the right to health has been increasingly valued by almost all countries throughout the world. In China, the research on the right to health has been stimulated by the ongoing health care reform, but it is still in its initial stage, and distinct theoretical system of the right to health has not yet formed. The core concepts as well as the basic principles have not been reached in a consensus. Moreover, the overall framework of the right to health has not been established systematically, and the evaluating criteria are not well defined. Therefore, there are still many problems awaiting us to solve in order to respect, protect and implement citizen' right to health in China. Based on jurisprudence, science of Constitutional law, Human Rights Law, Health Law, legislative theory and other basic principles, this paper attempts to deal with the four aspects below by applying type analysis, comparative analysis, historical analysis:(1) the basic theory of the right to health;(2) the value orientation and legal principles of the right to health;(3) the system and evaluation of the right to health;(4) the legal protection system of the right to health.In addition to the introduction, the paper consists of five chapters.Chapter one is the Ontology of the right to health. The purpose of this chapter is to clarify the basic concept of health as well as the right to health through the analysis of five medical models in human history and the three types of health definitions currently. Having analyzed that, the paper tries to propose the practical health definition in legal sense, and to criticize the "Utopian idea" of health, and draws a pragmatic definition of the right to health, and then intends to describe the basic attributes of the right to health.Chapter two is the origin and development of the right to health. Through the perspectives of legal source, legal philosophy and social development, the paper is going to answer the questions why health has been becoming a social issue from a personal or family affair, a positive right from a negative right, a basic human right from a common right. It is not enough to deal with the health issue only by "medical prescription", but by the "social prescription" mainly using the legal means, because health is not only a public health issue, but an important social problem.Chapter three is about the values of the right to health. It is designed to explore the core value and major legislative principles for legal protection of the right to health. Based on the distinctive features and present status of the right to health, this chapter elaborates the value orientation of legal protection and value priorities when conflicts of interests occur. The basic values are security, fairness, order and benefit. According to those value orientations, it also establishes the basic principles of the right to health legislation:the life supremacy principle, social benefit principle, prevention first principle, coordinative development principle and social participation principle.Chapter four is the systematology of the right to health. It aims to setting up the system of the right to health and system of evaluation criteria. The right to health might be divided into individual health (medical right) rights and public health rights with the subjects of the right as a standard. Then with right content as the standard, medical rights are divided into medical treatment rights, medical security and medical relief rights; while the public health rights are categorized into food safety right, the right against epidemic diseases, the right to occupational health, the right to environmental health, the right to mental health and the right to health related products safety. Meanwhile, the distinct health right systems are established through elaboration of different rights respectively. According to the evaluation criteria recommended by WHO, China's right to health protective status is evaluated from the four aspects of accessibility, availability, quality and fairness of health services. The paper also points out the existing problems and improving measures based on the evaluation.Chapter five discusses the practical theory of the right to health. This chapter is going to put forward feasible suggestions for legal protection of the right to health so as to construct the systematic health law system in the period of social transition and health care reform in China. The current situation and problems of legal protection of the right to health are analyzed from six aspects of Constitution, Administrative Law, Civil Law, Criminal Law, Basic Law of Health, and countermeasures and suggestions are proposed accordingly.