The Analysis Of Protection Of The Older Persons' Right To Health In China

The right to health as a fundamental human right, is most extensively and generally admitted in Article 12 in "the International Covenant of Economic, Social, Cultural Rights" passed in 1966. It has become the consensus of scholars and been recognized by human rights scholars that the right to health is an international human right taken by everyone. The concept of the right to health is the standard that everyone have the right to the enjoyment of the highest attainable physical and mental health; and it also is a changing concept of plenty meanings influenced by social factors, it contains two basic elements: "Health factor" and "the factor of a basic prerequisite for the health". Health as an equal right taken by everyone, its primary value is equality. Equality is the ideal and noble goal of the older persons' right to health. Along with impacts of social problems such as poverty,infectious diseases,war, and so on, socialization of public health makes the right to health be infiltrated more political or social objectives. The realization of the right to health is facing more difficulties, especially the aging of the world's population is becoming increasingly serious, and this has become an obstacle to the realization of the right to health. This paper begins from the theory of the right to health, the theory of the right health of older persons and the analysis of the old persons' right to health status, takes apart characteristics of the old persons' right to health, the conditions to achieve, the obligations of the State and other related issues. This paper mainly answers the question how to protect the right to health of older persons. To aim at this issue on the basis of the reality in china, the author not only probes into the theory how to realize and safeguard the health right of older persons in the paper, but also puts forward some related legislative, judicial, administrative suggestions.The full text has almost 40,000 words, the author expatiates from the following six parts:Chapter I is about the theoretical basis for the right to health. The author discusses the healthy, the right to health, its historical evolution, the code and its realization. From the detailed discussion of the content of the right to health, we find that it has been widely accepted as an international human rights. Secondly, this chapter clearly stressed the state obligations and conditions for the realization of the right to heath. We know more clearly the specific content of obligations that the state realizes the health right. Finally, by analyzing relationship between the right to health and public health, the author points out the principle of caution about the positive obligations of the state.Chapter II is concert with the theoretical basis of the older persons' right to health. From the analysis of the international situation and the aging of the population, we understand that the aging of the population has become a matter of concern to the international community. The aging has affected the country's economic structure and welfare policies in all areas. It has become a serious obstacle to the realization of the right to health. This chapter analyzes the inherent characteristics of the older persons' right to health by discussing the concept and the characteristics of the right to health of older persons, and the actuality in legislation, and its relations with other human rights. Firstly, older people as vulnerable or marginalized groups, the realization of the older persons' right to health more emphasizes on equality. Secondly, mental health has become an important component of the right to health.Chapter III analyzes the actuality of the older persons' health right. This chapter analyzes the social system deficiencies and shortcomings, universal discrimination and inequality phenomena, ineffective and lagged social policy, the challenges that China's aging population brings to the older persons' right to health. Then, the author points out the problems about the realization of the older persons' right to health, raises questions about the protection of the older persons' rights.Chapter IV is about the legislative protection of the older persons' right to health. From the point of the narrow concept of the legislation, the author analyzes the embodiment of the right to health in the Constitution and the domestic enforcement of the right to health in international human rights. The author suggests that the right to health should be one of the fundamental rights in the Constitution. We should constitute such as the "social security" and the "welfare for the elderly" to bring the constitution into idiographic effect. We should accelerate the "directly" or "individual transformation" course of the international human rights. Chapter V is about China's administrative guarantees of the older persons' right to health. This chapter analyzes the administrative guarantees of the older persons' right to health from the executive and the legislature of administration. First, the author stresses the positive role of the executive legislature, and puts forward legislative proposals. Second, in the administrative and law enforcement, the author puts forward the corresponding proposals and solutions aiming at the deficiencies and shortcomings in the social system, stresses the system construction, suggests the establishment of law enforcement supervision system improving law enforcement and performance of the country and realizing administrating our country according to law.Chapter VI is about judicial guarantee of the older persons' right to health. This chapter focuses on the right to health litigation and the channels for the right to health relief. The author believes that the right to health of older persons to judicial relief, should be firstly achieved in accordance the three proceedings ordinary judicial remedies for victims. Second, for the case which may involve citizens' basic constitutional rights, we should firstly seek a legal basis and legal principles out Constitution, because they ultimately contribute to the implementation and application of the values of the constitution in judicial practice. Constitution relief mechanism should not be blindly started. Although the Constitution is the last line of defense of litigation relief, however, activating Constitution relief is very difficult due to the constraints of existing institutional mechanisms. Here, the author proposes the relief of the right to health of older persons in the practical difficulties encountered in the process. Finally, the international human rights protection mechanism about the right to health is analyzed.