论作为基本权利的健康权

Right to Health as a Fundamental Human Right

对于"基本权利",应该理解为经宪法实定化后的人权,即宪法保障的权利。但不能认为只有宪法上予以确认的权利才是基本权利,宪法对于基本权利的明确确认与否只能产生宪法解释学上的区别。除了宪法文本以外,宪法实践特别是司法实践也是判断一项权利是不是基本权利的重要参考标准。健康权是一项基本权利,在司法实践当中也正逐步得到各国的确认。我国宪法上有多个条款可以作为健康权的依据,其规范内涵是:公民健康不受侵犯(第33条第3款,第36条第3款);公民在患病时有权从国家和社会获得医疗照护、物质给付和其他服务(第33条第3款,第45条第1款);国家应发展医疗卫生事业、体育事业,保护生活和生态环境,从而保护和促进公民健康(宪法第21条、第26条第1款)。

The 'basic rights' should be understood as human rights defined by the Constitution, that is the rights guaranteed by the Constitution. But it can not say that only human rights defined by the Constitution are fundamental rights. Whether the fundamental rights are recognized by the Constitution can only affect the meanings in theory of constitution construction. In addition to constitutional text, constitutional practice, especially the judicial practice, is also an important standard to determine the fundamental rights. International Covenant on Economic, Social and Cultural Rights, Universal Declaration of Human Rights, and many other international human rights documents provide the right to health. 67.5% of the countries in the world include the right to health in their constitutions, which can be divided into goal-oriented, rights-based, obligation-based, principles-based and direct-type five categories. The right to health is a fundamental right. In the judicial practice, it is also being gradually recognized by States. There are several provisions in our Constitution can be looked as grounds for the right to health. Its normative connotations include: the health of citizens is inviolable (Article 33rd Section 3, Article 36th Section 3); citizens are entitled to attain medical care, physical payments and other services from the state and society when they are in ill (Article 33rd Section 3, Article 45th Section 1); the state should develop medical and health services, sports enterprise, protection of the living and ecological environment, in order to protect and promote the citizens health (Article 21, Article 26th Section 1).