The Legislation Advise Of The Defense Of AIDS In China

AIDS is one of the most severe challenges human being have to face since 20th century and an important common hygiene and social question. Nowadays, China witnesses rapid expansion of AIDS and experiences the transmission from high dangerous group to general group. Being in the crucial situation of the defense of AIDS in China, the Party Center and the State Council pay considerable attention to the defense of AIDS and establish the Committee of Defense of AIDS in the State Council. Central finance adds generous expense for the defense of AIDS accordingly. In 2004, China makes five promises to prevent and save AIDS. But it is still far away from what is needed to the problem above. Only if to set up one united , perfect ,sound law to regulate relationship of various rights and responsibilities, china will do the job systematically,reasonably and efficiently. So author studies the legislation advise of the defense of AIDS in China under the guideline of humanism law viewpoint and by the analysis of history , comparison, system and interest. Author expects the response from the scholarsconcerned to improve status quo.The article is consisted of five parts as followed.Parti, this part is the research to the humanism theory and the relationship of the legislation advise of the defense of AIDS in China. Author states the resource of the humanism theory. First, author thinks that humanism is the solid demand of the right of life and health; the basic content of human right protection; the government idea of the Party in new times. Second, author studies the relationship between humanism and legality. Humanism is the base of legality, because the practice of human being is the prime condition of construction of legality, human being are the ground of the practice and human being are the goal of construction of legality. On the other hand, legality needs the tenderness to human being. In the construction of legality, human being are not contrary to legality. Human being are the end for good and legality is only the way to meet the end. The basic object of the tenderness to human being is " all — round development of person" and " freedom of personality". At last, author researches the relationship between humanism legality and the legislation of AIDS. Author believes that the best legislation of AIDS is the reflection of humanism legality in practice. Humanism legalitycan promote us to establish the defense law of AIDS. To say at length, the advancement of the legislation of AIDS is the key measure to protect the rights of lives and health of common people, the concrete approach to realize demand of protecting social benefit, the need to strengthen China socialism construction of legality, the working —out of the government idea of humanism of the Party.Part2, Author states the present condition of legislation of the defense of AIDS in China. Since the debut of AIDS in China 1985, department concerned set up a lot of laws ^regulationsand norm document involved in the defense of AIDS. This year, Yunnan and Zhejiang provinces put the local regulations to defend AIDS in effect. Those norm documents make define stipulations from the angles as follows: first one, the establishment of leading and coordination organs to defend AIDS; second one, the establishment of some measures to intense the regulation of the victims of AIDS; third one, the enact of some rules and policies tender victims of AIDSs the implement of defense measures with the content of prevention ^ promotion of international cooperation. There exist some problems in those laws and regulations. First, shortness of laws with united effect in China; second, the reality that lawspay attention to the administration of the victims, but dony t respect the human being rights and show no concern to tenderness and anti — discrimination. Third, the reality that laws pay attention to treatment and regulation, but ignore the guideline of the priority in prevention with the coordination of defense and control. Fourth, lack of one powerful administration, by the diverse efforts of few present departments, the job will not be well done.Part3, author discusses the legislation of the defense of AIDS around the world. First, as to the aspect of keeping of common health security, all countries establish the system of reporting AIDS and compulsory blood testing by legislation. Second, some countries stipulate some articles to prevent the expansion of AIDS by the malfeasance of doctors. Third, many countries set up special articles about criminal responsibility of the expansion of AIDS. Fourth, many countries stipulate the articles of anti — discrimination. Fifth, other measures and systems concerned the defense of AIDS, such as behalf intervening, subsidizing treatment and development of vaccine of AIDS. The legislations above are important references to the legislation of the defense of AIDS in China.Part4, author studies the guideline and primary principle ofChina to the legislation of the defense of AIDS. The legislation of the defense of AIDS in China should not only insist Dengxiaoping's theory of constructing the socialism characteristic of Chinese, but the following guidelines:!U humanism legality viewpoint. 2> the guideline of the priority in prevention with the coordination of defense and control. 3>, leaded by one prime department, cooperating between several departments, whole society should join the comprehensive regulations. 4> preference to reality and considering the future properly. 5^ paying attention to the communication and cooperation of international technology and information. The guideline principle of legislation should embody the guideline of legislation. The legislation of the defense of AIDS in China should insist the principles as followed:1 > the principle of supremacy of human being rights and humanism, we should pay more attentions to protection of human being rights especially the basic human being rights of the AIDS patients and the HIV carriers. 2^ the special protection principle. We should give necessary help and material relief to the AIDS patients ^ the HIV carriers and their relations who are weaklings of the society. We should helpthem to live as normal persons. 3,, the identical principle of rights and liabilities. We should notice the protection of civil rights before award the power to administration and make the balance of them. We should not only notice the define regulation of the right of AIDS patient, but stipulate that department concerned should give them opportunity to realize their rights. The AIDS patients are supposed to take some responsibilities at the time of the enjoyment of rights. 4,, all department concerned including of department of health > epidemic prevention,, hospital,, community,, civil administration,, propaganda and education should cooperate each other to prevent the AIDS.Part5, author studies the counter — measure and advise to the legislation of the defense of AIDS. First, the law of defense of AIDS should be placed the situation belong to basic law which will be beneficial to define the job of the defense of AIDS that help them coordinating each other, raising the effect of defense of AIDS, the uniting of the laws concerned about defense of AIDS, for the defense of AIDS will be involved in the restriction and deprivation of the personal freedom,, the basic rights and responsibilities of the AIDS patients,, the HIV carriers and their relations and the criminal and penalty. Thelegislation of the defense of AIDS should consider the future and the propose of the ill — timing is just an excuse. Second, we should establish one high — rank administration capable of leading the department concerned. Third, we should define the power of every department concerned to do the job of intervening as of rights regulation of patients > report of epidemic situation and propaganda and education. The job of the defense of AIDS is consisted of two parts: special prevention and general prevention. The so—called special prevention is that by the regulation >treatment>and tenderness of the AIDS patients, they will not transmit other people either by intention or negligence. The so — called general prevention is that by propaganda and education to social group, they will not be affected HIV. The whole job of administration should be operated around two points above so to cooperate each other and regulate as of right. Fourth, the rights and responsibilities of the AIDS patients and the affected should be defined. The law of defense of AIDS should further state that the AIDS patients and the affected enjoy the basic rights of life> healthy medication^ marriage> bearings taking jobN being educated> privacy and travel so to disappear the disputes and dim recognition of common group about whether AIDS patients andthe affected should enjoy such rights; on top of that, we should endow those weaklings some special material relief right. According to identical the principle, they should take responsibilities during the enjoying the rights above. To say at length, they should abide the responsibilities of the constitutions and law, cope with the job of department of the defense of AIDS, accept the inspection and treatment, avoid transmit HIV to others. Fifth, the law responsibilities of the defense of AIDS should be defined which include criminal ^ executive and civil responsibilities. " Crime of negligently damaging infectious disease prevention9\ "crime of illogically collecting or supplying blood" and " crime of transmitting venereal disease" should be added to the special article about treatment of AIDS, and the legal penalty should be raised accordingly . Because negligently transmitting ADIS exceeds the scope of "crime of negligently causing severe injury", so "crime of negligently transmitting AIDS "should be added to punish this severely damaging behalf. When setting up the power of administration concerned, we should stipulate the law responsibilities about ill — perform job or abuse power of every rank administration and its staff member in the part of law responsibilities. The civil responsibilities are consisted of twoparts: one is the civil tort responsibilities causing by infringing the rights of AIDS patients ^ the affected ^ their relatives and surviving dependents which apple to principle of fault responsibilities, the other one is that the AIDS patientsA the affected and the department concerned cause others affected intentionally or negligently which should apple to principle of fault compensative responsibilities. While without fault, if causing others affected, according fair principle, medical organ,, blood station and blood production unit should take the compensative responsibilities.