论应急法治下对公民权利的限制与保护——以突发公共卫生事件应对为例

Limitation and Protection of Civil Rights under Rule of Law in Emergencies:Taking as an Example the Responses to Public Health Emergencies

突发公共卫生事件之下,对公民权利的限制与保护成为法治框架内应对非常状态的重要命题。为维护公共健康利益,突发公共卫生事件发生后,首要的任务是防止危害扩大,由此涉及对公民人身自由、隐私权、财产权和经营自主权等权利的限制。除防止危害扩散外,还需要对公民健康利益进行维护以及实施必要的救济,为实现这一目的,同样可能对公民的权利和自由构成一定的限制。应急法治下的权利限制需要遵循基本的法治原则,包括法律保留原则、比例原则和程序正当原则。随着公民权利限制事由的变化或消失,需及时调整公民权利限制规则,对于权利受到限制的公民,应当根据情势变更,及时解除限制。应急法治体系的完善,需要立法、执法、司法以及守法的全方位配合。

Under a public health emergency,citizens'rights should be subject to necessary restrictions in order to safeguard public health interests,thus making the limitation and protection of civil rights an important topic in coping with emergencies within the framework of the rule of law.When a public health emergency occurs,the primary task is to cut off the chain of transmission and prevent the expansion of harm,which concerns the limitation of citizens'rights to personal freedom,privacy,property and business autonomy.Apart from preventing the spread of harm,it is necessary to safeguard the health interests of citizens and provide necessary remedies.To achieve this purpose,certain limitation would also have to be imposed on the rights and freedom of citizens,mainly including the rights to health and property.The limitation of rights under rule of law in emergencies requires adherence to basic principles of rule of law,namely,the principle of legal reservation,the principle of proportionality and the principle of due process.The principle of legal reservation requires that only the NPC and its Standing Committee can,in the form of laws or decisions,restrict the personal freedom of citizens.The principle of proportionality requires the following steps:firstly,to determine whether the purpose of limiting citizens'rights is justified;secondly,to decide whether limiting citizens'rights helps to achieve the purpose,and then to decide whether the measures taken to limit rights incur minimal harm and least infringements among all the possible measures;finally,to determine whether the public health interests achieved through limiting citizens'rights are proportional to the harm caused by the limitation.The principle of due process should include openness,clarity of facts,appropriateness of subjects,neutrality in handling and participation in the process.Limitation on citizens'rights should not exceed the boundaries,otherwise it will go against the spirit of the rule of law.The limitation that is imposed on citizens should be lifted in a timely manner according to changes in the situation.Improving the system of rule of law in emergencies requires the all-round coordination of legislation,law enforcement,judicature and abidance by law.At the legislative level,it should be suggested to restart legislation on extraordinary states,differentiate between urgencies and emergencies,and build a complete emergency legal system;at the law enforcement level,we should carefully examine the practical connotation of administrative principles in emergencies,establish principles and rules of law enforcement under extraordinary states,and meanwhile,set up corresponding supervision rules for law enforcement in extraordinary states;at the judicial level,we should clearly define the functional orientation of judicial organs under the rule of law in emergencies,so as not to affect the response to emergencies while giving play to the function of judicial organs in dispute resolution;at the law-abiding level,we should strengthen the popularization of emergency laws and regulations to help citizens better understand the rule of law in emergencies.