社会合作规制在突发公共卫生事件防控的运用

Application of Social Co-Regulation in the Prevention and Control of Public Health Emergencies

突发公共卫生事件的群防群控,以基层治理方式和基础性机制实现突发公共卫生事件的公私合作应对,在性质上属于社会合作规制的新模式。面对以群防群控为代表的社会合作规制的运用,传统行政法在政府责任理念、纯粹公法制度、行政控权规则、硬法规范结构等方面遭遇重大挑战。为此,从行政法治理论创新上看,要塑造以政府担保责任为主导的新行政法治理念,形成落实社会主体责任分配的“私行政法”,发展以调整行政担保义务为实质和兼控社会合作规制权的“担保行政法”,构建软硬兼施的“平衡行政法”。就行政法制度嵌入而言,需实现社会合作规制立法与新行政法理论的对接,针对《突发事件应对法》的缺陷,分别从新行政法基本原则的健全、公法私法混合制度的嵌入、政府担保责任规则的建立、软硬平衡法规范机制的构建等方面进行体系化设计和完善。

The prevention and control by the masses of public health emergencies can realize the publicprivate partnership with grass-roots governance and basic mechanisms, which belongs to a new model of social co-regulation. Faced with the application of social co-regulation represented by the prevention and control by the masses, the traditional administrative law has encountered significant challenges in the concept of government responsibility, the system of pure public law, the rules of administrative control and the structure of hard law norms and so on. Therefore, from the theoretical innovation of administrative law, it is necessary to shape the concept dominated by the government guarantee responsibility, form “the private administrative law” to implement the responsibility distribution of social subjects, develop “the guarantee administrative law” with the essence of adjusting the administrative guarantee obligation, and build “the balance administrative law” applying both hard law and soft one. From the embedding of administrative law system, it is necessary to realize the docking of social co-regulation legislation and the new administrative law theory and design systematically, such as the improvement of the basic principles of new administrative law, the embedding of the mixed system of public law and private one, the establishment of the rules of government guarantee liability, the construction of normative mechanism of soft and hard balancing law and etc.