论我国紧急状态法制的重构——从反思《突发事件应对法》切入

On Reformulating China’s Legal System of Emergency State—Revisiting Emergency Response Law

在重大突发事件应对中,紧急状态法制发挥着公权和私权再平衡的功能,并为社会秩序的转换提供统一标识。受2003年“非典”推动的“紧急状态法”中途改为《突发事件应对法》,这一立法思路的转变使宪法上紧急状态制度的实施失去依托,对国家依法宣告紧急状态形成了制约;而《突发事件应对法》实施十多年来的实践证明其并未发挥好应急领域基本法的功能。为此,建议全面修订《突发事件应对法》,将其分拆为“紧急状态法”和“应急管理法”。“紧急状态法”应降低宣告紧急状态的门槛,将紧急状态类型化,围绕特别重大突发事件的事中和事后应对环节建立具体制度。“应急管理法”应当合理设定立法目标,把握好“综合法”的定位,理顺国家应急管理体制,确立应急管理基本原则,重点规定跨灾种、跨部门,需要统筹协调、综合管理的应急管理活动。

In response to major emergencies,the system of emergency state has played an important role in rebalancing public and private rights and provided a unified measurement for rendering social orders.The draft of Emergency Law driven by SARS in 2003 was later changed into the Emergency Response Law.The change in the approach to legislative thinking led to the lack of foundation for the Constitutional implementation of the system of emergency state,resulting in the restriction of the State in announcing the state of emergency.On the other hand,more than ten years of implementation of the Emergency Response Law has proven that the Law has not played its due part as a basic law in response to emergencies.In view of this,it is recommended that Emergency Response Law be revised into two parts:Emergency Law and Emergency Management Law.Emergency Law should lower the thresholds of emergency announcement,classify states of emergency into typical categories and build up concrete systems according to the mid or post-phase of particularly major emergencies.Emergency Management Law should set up rational legislative goals by positioning itself properly as a“comprehensive law”,clarifying the functions of national emergency management system,establishing fundamental principles of emergency management and laying stipulations on major emergencies that call for coordination and comprehensive emergency managementamong different sectors in response to two or multi disasters.