传染病防治法调整对象的理论逻辑及其规制调适

The Jurisprudence and Adjustment of the Regulated Object in the Infectious Diseases Act

传染病防治法的调整对象关涉传染病防治制度的启动和运转,决定了整个传染病防治法的目标实现和功能发挥,须认真对待。根据立法对病种的确认方式,可大致提炼出国家主义防治观和专业主义防治观两种理论类型。国家主义防治观通过法律事前明确而严格地列举传染病病种及其等级,以体现国家权力对紧急状态的谨慎态度和对维护秩序的重视,凸显国家角色;专业主义防治观则通过立法中的传染病定义而将临机判断、确认甚至决策的权力交给专业机构和专业人员,体现对智识的尊重和对科学的追求,以更符合传染病防治本身的规律性和科学性,凸显专家作用。两种防治类型在理论上各有优劣,评价两者正当与否的标准在于何种类型下做出限制公民权利和自由的决定更符合比例原则的要求,而在规范主义价值立场上,这首先需要实现国家主义防治观和与专业主义防治观的平衡。我国现行《传染病防治法》在调整对象上体现出国家优先的中国特色制度优势,尤其具有形式合法性并能获得强大的组织与效率保障,但也存在因专业机构和专业人员的制度性角色不足而带来的应对迟疑等缺陷。因此,我国传染病防治立法在调整对象上应增加专业主义的比重,以实现国家角色与专家作用的互补与协同。

The regulated object of the Infectious Disease Act relates to the start and operation of the system of prevention and treatment of infectious diseases, which must be treated seriously. According to the confirmation of infectious diseases by the legislation, two ideal types of prevention and control jurisprudence, the nationalism and the professionalism, can be roughly refined. The nationalism clearly and strictly lists the types and grades of infectious diseases in advance, so as to refl ect the cautious attitude of the state power towards the state of emergency and the importance it attaches to maintaining order, and highlight the role of the state. The professionalism is that through the definition of infectious diseases in the legislation, the power of judgment, confirmation and even decision-making is handed over to professional institutions and professionals, which refl ects the respect for knowledge and the pursuit of science, so as to better conform to the regularity and scientific nature of the prevention and treatment of infectious diseases and highlight the role of experts. These two ideal types have their own merits and demerits in theory, and the criterion to evaluate whether they are justified or not lies in which type of decision to restrict civil rights and freedom is more in line with the requirement of the principle of proportionality. In terms of the value standpoint of normative doctrine, it is necessary to achieve the balance between nationalism and professionalism. The current Law on the Prevention and Control of Infectious Diseases in China shows the advantage of national priority system with Chinese characteristics in adjusting objects, and it has formal legitimacy and can obtain strong organization and efficiency guarantee, it also has some defects, such as the response delay caused by the insufficient institutional role of professionals. Therefore, China should appropriately increase the design of the proportion of professionalism in order to achieve the complementarity and balance between the roles of the state and the experts in the adjustment object of China’s infectious disease prevention and control legislation.