The Research On The Soft Law Function In China’s Health Care Reform

With the rise of public governance, norms which provide institutional basses forpublic governance have also been developing increasingly and diversely. In additionto the hard law including laws and regulations of the central through the legislativeprocess, soft law which does not go through the national legislative process and doesnot rely state’s mandatory protection and does not own legally binding, but canproduce a practical effect. It can also adjust people’s behavior and regulate socialorder in the society. Soft law whose creator is variety, creation method is democraticand consultative, and guarantee way is variety, and the running cost is low, canregulate people’ s behavior and answer social needs in recent society whoselegislation is not enough. China’s medical reform has long been carried out throughthe central executive order. While it is seldom that using laws to regulateresponsibility of Government and all participants in health reform to clear theirobligations to actively promote health care reform. This causes many problems. Onone hand, all levels of government acts lonely in the health reform, and yet otherparticipants who are likely to make a difference in the health reform are excluded.On the other hand, due to the lack of legal norms, the unclearness of rights andobligations, leaders’ will is likely to influence the direction of reform. As a result,it causes the formation of interest groups, and becomes the resistance of the medicalreform instead. In the running of current health care system, China appears socialphenomenon,"expensiveness and difficultness in seeing a doctor”. However, thenational health care reform has not found a good method to resolve them.With theintroduction into and emphasis of soft law in the health reform, a good situation forhealth care reform can be created: First, it can make up for the lack of the nationalnorms in the medical reform, especially give people the regulation guidelines andestablishment systems in current drastic changing relationship in medical field.Second, soft law generated in government departments can cause the health reformmeans of government to be more flexible and diversified, and respond to the needsof the society, and also make government reform in a more positive attitude.Third,soft law generated by all participants’ consultation, can incorporate the NGO intothe body of the health care reform, and thus forms around ruling situation, integrateseach reform force of participants, and shares responsibility of the government reform;Fourth, soft law can pay the basis, the experience of trial and error, for legislation of the health care system of in the future health reform, especially plays a quasi-legalfunction in the present all medical reform experimental unit.