A Study On The State Responsibility Of Compliance Vaccination Under The Perspective Of Risk Society

Under current medical, scientific and technological conditions, side effects of vaccines cannot be eliminated completely. As a result, it is inevitable for large scale vaccine inoculation to cause damages to a minority of people. Nevertheless, the involvement of national public power in the process of vaccine inoculation has lead to corresponding state responsibility. China adopts a pattern that combines compulsory and voluntary inoculations. For those severest kinds of infectious diseases, the administrative organs take a compulsory approach to ensure general vaccine inoculation for all public people, thus to safeguard personal health and improve public welfare, while for other less severe infectious diseases, it allows the public people to choose whether or not to get inoculated, wherein the government only undertakes the tasks, such as publishing information.The State Compensation Law as enacted in 2010 has established a system of culpability integrating transgression criterion of liability and result criterion of liability. However, this still fails to completely address the dispute over core issues such as the principle of culpability. The country’s system of state indemnity still lacks of corresponding legal regulations or even constitutional ground. On that basis, after carrying out an investigation on China’s current mechanism for the assumption of state responsibility for damages caused by vaccine inoculation, we may find that at present, only a very limited system of state indemnity is formulated on the assumption of state responsibility for damages caused by inoculating specification complied vaccines, but has not introduced the system of state compensation. While the administrative organs exercise its public power in many aspects such as the preparation of immunization program, it has not assumed the responsibility for the damages caused in the process of exercising its rights as according to the basic principle of administrative law, which is to assume corresponding responsibility in accordance with its vested power. However, the existing system of indemnity has a series of problems such as too narrow scope of indemnity, injustice with indemnity procedure, difficulties in the determination of causal relationship involved in an indemnification and large difference across local regulations.The establishment of the rule on vaccine inoculation, as a matter of fact, is the country’s weighing a certain risk, which in the big context of the coming of a risk society, the traditional responsibility system has not been sufficient in coping it. The duty of care in faceof risk has expanded the scope of state responsibility, while the universality and uncertainty nature of risk has made us resort more to the relief of right other than accountability for the state responsibility, for which, the state responsibility system must respond and make change in a proactive manner.Specifically, in construction of the state responsibility for damages caused by inoculating specification complied vaccines, through the extensive interpretation of transgression criterion of liability or the introduction of the principle of fault liability, we should establish a state compensation liability based on the violation of the duty of care. In terms of its specific essential elements, we should consider whether or not the country has any fault based on the objective and high duty of care, view the act performed by the government in forcing or encouraging vaccine inoculation as an exercise of its public power, and replace the “scientific causal relationship” with “legal causal relationship” in terms of the determination of the causal relationship.First of all, to improve existing system of state indemnity, Clause 3 of Article 33 and Clause 3 of Article 41 as contained in the Constitution should be referred to as the constitutional ground and theoretical basis of the state compensation system. Secondly, current scope of state compensation should be expanded to include the damages caused by psychogenic or coupling reactions and a part of damages incurred in inoculating the second type vaccine. Thirdly, the start up procedure for indemnity mechanism should be improved from the perspective of enhancing the fairness of the system. Moreover, a procedure to hear the opinion of the party concerned should be added and relief route should be provided in case of an objection to identification result. Furthermore, the rules used in determining causal relationship involved in state indemnity should also need to be transformed from “scientific causal relationship” to “legal causal relationship”. Finally, all local legislations also need to be unified.