论公共卫生视阈下烟草控制的法律规制路径

Legal Regulation Route of Tobacco Control from the Perspective of Public Health

烟草危害是当今世界最为严重的公共卫生问题之一。法律对公共卫生的直接调整,面临着个人自由、公众健康以及国家利益的冲突和博弈。通过侵权法实现法律对公共卫生的间接调整,是协调这一冲突的重要路径。然而,在烟草侵权诉讼中,因果关系之证成、赔偿范围之划定均面临困难,加之被告经常提出责任免除或减轻的抗辩,其实践效果差强人意。在现有法律调整不足的背景下,充分发挥诉讼外救济的功能,是适当填补受害人损失,进而间接增进公共健康的有效路径。

The harm brought by tobacco is one of the most serious public health problems around the world. The direct regulation through public health governance may often face the value conflict between individual freedom,population health and state interests. To deal with the conflict,indirect regulation through Tort Law is considered a significant way. However,when it comes to the litigations about tobacco infringement,it may be difficult to prove the causation,or to evaluate the compensation. Defenses may also be raised by the defendant to exempt or diminish its responsibility. Thus the current legal practice is far from satisfaction. Given the deficiency of legal regulation,it is considered that ADR may effectively help the victims get compensation and consequently contribute to the improvement of public health.