Exploration Of The Jurisprudence Of The Mental Health Legislation Plight

Current mental health legislation in China has been a hot topic in academic circles, due to the special nature of mental illness, patients often fail to recognize and control their own behavior, at any time may make the behavior of self-harm or assault, in order to protect the health of my well-being of mental patients life and property and the health of other members of society, in the case of necessary medical care is mandatory for its essential requirement of social order. However, often encountered in real life these two situations: on the one hand, there is no mental illness or some citizens do not need hospitalization of mental patients are forced hospitalization, legal rights have been violated human rights were wantonly trampled on; other hand, some very possible to implement the harmful acts of mental patients, not received the necessary treatment and restraint, resulting in serious social consequences.Admitted to the psychiatric disorder of the community are looking forward to a "Mental Health Act" enacted to turn the tide, then set aside 25 years of "Mental Health Act," still did not like about the introduction of the end of 2010, to date, although Fourth Session of the Eleventh National People's Congress, Wu Bangguo, chairman of legislative re-emphasized the focus of this year will include the development of mental health law, but by analyzing the 2009 release "draft Mental Health Act", we can still look into the depths out of mandatory health measures of "abolition" and "improved"; mentally ill and the medical definition of human rights protection; rights and responsibilities of family members of psychiatric patients; mental illness and other issues of property management and protection of the law will be issued a "stumbling block", the plight of mental health legislation Where is? The road should the legislature do?And different point of view the mainstream legal circles, this is not only to explore the path from the legal norms of mental health legislation in the construction of compulsory medical measures to the issue of legal transplantation, and should be equal to the case of primer Zou, the plight of mental health legislation in place the core problems legal and cultural perspective, the use of combined history, comparative analysis, this study does not focus on how to set up mental health law, but rather to explore why China can not establish long-term mental health law, in other words, the present legislation on legal and cultural aspects of the plight of discussion of its "real probability", trying to analyze the plight of mental health legislation causes behind the problem demonstrated by the deep structure of the legal culture of conflict rather than simply multiple legislative technological backwardness and social objective economic constraints: the deep structure of our legal culture The concept of multiple conflicts have led to the legal value of the fuzzy and then appeared in the area of legislation is the Mental Health Act across the country the absence of normative articles immature and local regulations.Many scholars believe that the plight of mental health legislation is limited to "the crudeness of compulsory medical measures", and they tend to advocate the legal norms of foreign advanced graft to fill the loopholes in our legislation, but these come from criminal law, sociology, mental recommendations of the medical profession not only Chinese and foreign legal norms are often entangled in the legal aspects of their own lack of deep reflection, construction of specific provisions are concave over the theory and practice show "fault."In my opinion, our mental health legislation in the "reluctant" is not entirely caused by the Legislative backward technology, the other hand, is the result of legislative concepts of inertia of thinking, the rule of law in the modern wave of the surface structure of our legal culture and deep structure itself is undergoing a multi-cultural conflict game, it is this conflict, so that legislators a time "at a loss." Second, protection of the rights of mental patients in Western and related systems are also due to different national legal culture of a different path through the evolution of the current system is not "overnight", the United States, Britain and other developed countries, the Mental Health Act after decades of amendments has been increasingly improved, robust legal provisions flashed "the light of human nature", they are in the field of mental health legislation for all to see the results, but these laws are fine for the growth of the soil, which is obviously not the only legal migration can be resolved, countries system behind the formation of legal culture is what we construct the basis of mental health legislation.This paper mainly address three issues: first, from the perspective of legal norms of the draft law on mental health (including mental health around the implementation of the local method) analysis, analysis of the Mental Health Act in China (draft) dilemma. Second, to clarify the legal culture, compulsory medical treatment, patients with the basic concepts of human rights, from the perspective of legal culture of the West based on protection of the rights of mental patients and historical evolution. Third, explore the plight of the way out of mental health legislation.