General Theoretical Analysis On Smoke-free Environment Legislation

Beijing issued a ban on smoking to host the Olympic Game in2008, Shanghai also set a smoke-free environment legislation for World Expo in2010, in May2010, Ministry of Health spokesman claimed that ended in2011China will ban smoking in public places to fulfill the World Health Organization FCTC. These three events caused a discussion of the masses on non-smoking in public places, including whether the hazards of the second-hand tobacco smoke really exist, how to balance the interests of smokers and non-smokers, etc. However, the analysis of smoke-free environments legislation article on law point is seldoml, and most are scattered and short texts, which are maily introductions of the international experiences. This thesis is a legal analysis on the smoke-free environment legislation, including the legal basis and the theoretical basis of the smoke-free environments legislation, used the right theory and the principle of proportionality for analysis, in order to strengthen the law study of the legislation on smoke-free environment. This study will be limited within the smoke-free environment legislation sphere, not explore tobacco advertising, tobacco taxes and other issues, the smoke-free environments legislation means that we should establish100%smoke-free environmentin public places, workplaces and other possible places by law.For research of such a topic, one need to have a clear understand on the status and research status of both the domestic and international smoke-free environment legislation, this is done by reading extensive literatures. At the same time, he should skillfully control the right theory and the principle of proportionality. Roughly as follows, this text reflects these.The first part is the introduction, describes the background of thesis writing, research methods, research significance. Followed by the first chapter "Review on Chinese mainland Legislative", this chapter discussed and analysised the status of smoke-free environment legislation in the Chinese mainland, including the central legislation, local legislation and the existence of practical difficulties. The second chapter is the legal basis of the legislation, this chapter traces the smoke-free environment legislation in accordance with international law and domestic law, World Health Organization FCTC and our Constitution and the Act of Minors Protection. Chapter III called "the right theory in legislation", used rights theory in smoke-tree environments legislation, discussed the rights of justice inherent requirement, the differences between rights and freedoms, then answered whether smoking can exist as a right, this standard will slove the problems that which palcc need to cstblish a smoke-free environment and wheter the possibility of creating smoking areas exist. The fourth chapter is application of the principle of proportionality, this part made a brief overview of the principle of proportionality firstly, and then answered why should intervent the establishment of smoke-free environment by the administrative law, and what is the timing of intervention, and then smoke-free environments legislation and specific measures were considerated, these analyzes are based on the principle of proportionality. Finally, the epilogue.It has passed five years since World Health Organization FCTC effect in our country, accordance with its provisions, our government should be to prevent second-hand tobacco smoke exposure to provide universal protection, it means we should establish100percents smoke-free environment in indoor public places and workplaces. However, do not consider the actual performance, just the legislation, China has much work to do in order to catch up with the provisions of the Convention. However, taking into account the practical difficulties of tobacco control in our contry, we can place local legislation first. Local smoke-free environments legislation under the FCTC, our Constitution, China’s Protection of Minors Act and other related laws, can breakthough the central smoke-free environment legislation. The purpose and the inherent concept of smoke-free environment legislation is to protect non-smokers’ health right, restrictions on smoking to protect non-smokers the right to health, compliance with the law, and it is a matter of course. But someone mentioned that smoking is also a right that be should protected, this confused the distinction between the right and the freedom, smoking is a personal freedom of choice, but not a right, rights should also meet the requirements of justice. Just as smoking behavior is harmful to the health of others, so it should be prohibited, based on this, the law should prohibit smoking in indoor public places and workplaces, and cannot set smoking areas, and we can not take alternative measures such as ventilation. Because scientific evidence shows that alternative measures are not effective in preventing second-hand tobacco smoke exposure, second-hand tobacco smoke exposure does not exist the security level.In order to protect non-smokers’ health right, and to compliance with FCTC in good faith, China should accelerate the progress of the smoke-free environment legislation. Intervented by administrative law, establish100%smoke-free environments in indoor public places and workplaces, without lternative measures, this meets the legal requirements, and also meets the theoretical requirements of the theory of rights and the principle of proportionality.