关于《基本医疗卫生法》的立法思考

Reflection on the Legislation of The Basic Medicine and Health Law

《基本医疗卫生法》在立法过程中仍存在较多争议。本文认为:在名称上,该法宜以《医药卫生基本法》命名;在性质上,该法应属于社会法,所调整的是纵向、横向和纵横多维的社会关系,且应跳出该法属于行政法或民法部门法的争议;在立法理念上,应宏观与微观相结合、基本法与体系化相结合、公益性与市场化兼顾和中西医并重而扬长互补;在立法结构上,应包括总则、医疗服务、药事管理、公共卫生、争议处理与政府责任和附则等内容;在立法组织上,应重视专家和专业领域的行业学会、协会在立法中的作用。

In the legislation process of The Basic Medicine and Health Law, there still exist many controversies. This paper argues that： from the perspective of its name. the law should be named The Basic Law of Medicine and Health Care; from the perspective of its nature, the law should belong to the social law, adjusting the vertical, horizontal, and vertical and horizontal multi-dimensional social relations, and should not dwell on the controversy that the law belongs to administrative law or civil law; from the perspective of legislative concept, we should combine macro and micro, combine the basic law and systematic law, take public welfare and marketization into account, put equal emphasis on Chinese and western medicine and make them complementary; from the perspective of legislative structure, the general principles, medical services, pharmaceutical affairs management,public health, dispute processing, the government＇s responsibilities and supplementary provisions should be included; from the perspective of the framework of legislation, we should pay attention to industry association in the field of experts and profession, and association＇s role in legislation.