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    On the System of Rights Underlying the Right to Health and Constraints on the Right to Health — Including a Commentary on the Basic Healthcare and Health Promotion Law (Draft)
    April 07,2020   By:CSHRS
    On the System of Rights Underlying the Right to Health and Constraints on the Right to Health
     
    — Including a Commentary on the Basic Healthcare and
    Health Promotion Law (Draft)
     
     
    ZHANG Dongyang*
     
    Abstract: Conceptually, health is subjective, procedural and socially reliant. This three-fold nature determines the connotations of the right to health as well as the constraints thereof. The right to health encompasses both the right to freedom and social rights. The right to freedom in the context of health means that the state should respect the health status and choices of its citizens and trust that the people are able to optimize their health through their own efforts, whereas the right to basic healthcare services is an important component of the right to health from the perspective of social rights. The review system stipulated in administrative normative documents increases, to a certain degree, the possibility that citizens can realize their right to health. The right to health is constrained in three aspects: “precon-dition of the possible”, concurrent requirements imposed by society and conflicts among basic rights. When there is financial restraint on what the state can afford, the right to health is constrained by limits to healthcare institutions and the provision of healthcare services. Over-emphasis of individual responsibility on the part of the insured can possibly transform the right to health into an obligation to be healthy.
     
    Keywords: right to health   right to freedom   social rights   basic healthcare services
     
    I. Introduction
     
    In October 2018, the draft of the Basic Healthcare and Health Promotion Law (hereafter referred to as the “draft law”) was submitted to the sixth session of the Standing Committee of the 13th National People’s Congress for its second review. In order to emphasize the status of the rights of insured persons, the Chinese legislature used the term “right to health” for the first time in the draft law. It goes without saying that health is a core component of individual autonomy and dignity as well as a precondition for active participation in social life. It is also noteworthy that the stand-alone Article 2 (“Citizens’ Obligations and Right to Health”1), which scholars had advocated for, was deleted from the second revision of the draft law, with its compo-nent terms being incorporated into other articles. Meanwhile, with respect to the terms providing that citizens enjoy the right to health “in accordance to the law”, which appeared in the first revision of the draft law, the phrase “in accordance with the law” was deleted from the second. Why did the legislature make these amendments? What are the connotations of the right to health? What constraints should there be on the right to health? What are the new challenges posed to the right to health in the age of big data? After the “awakening” of the right to health by the health and human rights movement, the question of how to build a comprehensive “right to health” system has become an important concern for both researchers and administrators2.
     
    II. The “Right to Health” as a Fundamental Right
     
    The right to health has long been recognized as a fundamental human right in international human rights law. The 1946 Constitution of the World Health Organization stipulates in its preamble that: “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” Provisions related to the right to health are also included in Article 25 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Economic, Social and Cultural Rights, Article 24 of the Convention on the Rights of the Child and Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women.3 What is health? Is the right to health a fundamental right safeguarded by the Constitution of China?
     
    A. The concept of health
     
    The preamble to the WHO’s Constitution defines human health in the following manner: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” This definition makes it clear that the concept of human health transcends the scope of normal physiological function to include mental and psychological well-being as well as ensuring that an individual is able to adapt to society. Health therefore has to be understood from the three following perspectives. First, health is a highly individual attribute of human beings, a combination of objective physical constitution and subjective “feelings”. Second, health is not only a state, but also a development process of life itself. For instance, there have been more and more scientific evidence to support the classification of ageing as a disease and designating the treatment of ageing and the prolongation of life as a goal to be achieved. Finally, health is not a simple natural, scientific phenomenon but a social construct influenced by history, culture, religion and economics. Hence, health is highly subjective, procedural and socially reliant.
     
    These three properties of “health” as a concept also require that care be taken when defining the right to health. Eberhard Schmidt-A?mann, a German scholar of administrative law, argues that the practices of the German Federal Constitutional Court regarding the “fundamental right of scientific freedom” should be emulated, allowing individuals to define the right to health. However, because of the unique attributes of the concept of health, there is a need to be discerning. 4 First, due to its subjective nature, individuals should be given the preferential right to define health. Put differently, the state should, on the one hand, respect the individual’s right of self-determination and not force him to “suffer a disease”. On the other hand, individual experiences provide important clues in deciding whether something is a “disease”. Second, healthcare professionals bear the responsibility of identifying diseases and the determining people’s state of health. They decide whether to define a particular con-dition or process as “disease” based on requisite medical expertise. This also requires the diagnosis of disease be more transparent and easily understood with respect to the public and society at large. Finally, the state also has certain rights to define health and disease. Health, as a social construct, is closely related to law. Its construct is endowed with further meaning through state legislation on the basis of medical knowledge and in conjunction with the state’s socioeconomic considerations.
     
    B. The Chinese constitutional basis for the right to health
     
    In contrast with international treaties and the constitutions of other countries that include the right to health in their articles, the chapter on “The Fundamental Rights and Duties of Citizens” in the Constitution of China does not stipulate a right to health. Instead, the Chinese Constitution only mentions “to protect the people’s health” in Article 21. Neither did the drafters of Germany’s Constitution include the right to health in the German Basic Law. The constitutional convention felt that the wording and consequences of a “right to health” were overly obscure and ambiguous. Moreover, there was a strong possibility that it could result in the establishment of a national health system akin to that in the United Kingdom.5 However, this did not prevent the right to health from becoming a fundamental right protected by the German constitution. The German Federal Constitutional Court often infers new fundamental rights from the text of the constitution, the most notable example being the right to in-formational self-determination. Today, German scholars often infer the right to health from Section 2, Article 2 of the German Basic Law (“Every person shall have the right to life and physical integrity”).
     
    Inferring new fundamental rights from the plain text of the Constitution is also a practice from which Chinese constitutional scholars have drawn lessons. The actual text, from which such inferences are drawn, can be those articles that contain clearly defined rights of freedom, basic national policies and human rights safeguards.6 In the context of the Chinese Constitution, specific provisions relating to citizens’ rights to health include: Section 33, Article 3 (“The state respects and preserves human rights.”), Article 21 (“The state develops medical and health services, promotes mod-ern medicine and traditional Chinese medicine, encourages and supports the setting up of various medical and health facilities by the rural economic collectives, state-owned enterprises and undertakings and neighborhood organizations, and promotes public health activities of a mass character, all to protect the people’s health.”), Article 26 (“The state protects and improves the living environment and the ecological environment, and prevents and remedies pollution and other public hazards.”), Article 45 (“Citizens of the People’s Republic of China have the right to material assistance from the state and society when they are old, ill, or disabled. The state develops the social insurance, social relief, and medical and health services that are required to enable citizens to enjoy this right.”) and provisions in Article 36 that prohibit the use of religion to “impair the health of citizens”. These articles safeguard citizens’ right to health by protecting human rights, developing health and medical services, environmental protection and state assistance, encompassing the right to health for ordinary, ill and infirm citizens.
     
    III. The Right to Health as a Right to Freedom and a Social Right
     
    What legal relationship between citizen and state arises when citizens enjoy the right to health? The answer to this question is decided by how the functions and di-mensions of fundamental rights are understood. Georg Jellinek, a German scholar of public law, argues that, per the relationship between citizens and the state, this can be interpreted from the four types of citizens’ status.7 The first is the “passive status” (status subjectionis), i.e. that citizens are de jure subjugated by state authority. The second is the “negative status” (status libertatis), where citizens are free from state interfer-ence in the sphere of freedom guaranteed by fundamental rights, i.e. that the state has the duty to respect this sphere of freedom, and citizens may guard against state inter-ference. The third is the “positive status” (status civitatis), where the state recognizes and endows citizens with legal capacity, allowing citizens to make claims upon the state to actively carry out activities that fulfill their interests. The fourth is the active status, or status of active citizenship, where citizens have the capacity to participate in the formulation of state ideology, mainly manifesting as the right to vote and the right to hold public office. According to this division of the functions of fundamental rights, many scholars argue that the right to health falls under the scope of citizens’ active status, and that states are expected to provide for this right actively, making it a quint-essential social right.8 Although this popular view affirms the distinctions between the right to freedom and fundamental social rights, it often neglects the fact that the right to health, as a result of the attributes of the concept of health, contains elements of social rights and the right to freedom.
     
    A. Elements of the right to freedom in the right to health
     
    The right to freedom, as a fundamental right, can be seen as a defensive right safeguarding the individual from state interference, which is also the most primitive function of all fundamental rights. In the context of the right to health, elements of the right to freedom imply that citizens can guard against unjust violation by the state. This is reflected in prohibitions against afflicting torture and inhuman punishments upon citizens as well as laws stipulating that limits on a citizen’s physical integrity must have a clear legal basis and must be proportionate to the pursued aim. For instance, a Taiwan regulation allowing members of the public who refuse alcohol tests be sent to hospitals for mandatory blood tests, has given rise to debate on whether such regulations overly infringe upon human rights.9
     
    The defensive aspect of the right to health aims to safeguard the life and physical integrity of every citizen, thus forming the basis upon which other rights are exercised. The state should, first and foremost, maintain its distance and abstain (as far as possible) from interfering, respect the health status and choices of its citizens and trust that the people are able to optimize their health through their own efforts. Only when the individual is incompetent, or when the public interest is involved, should legislation be enacted to limit these rights. Moreover, such limits should be clear and specific.10 Section 2, Article 19 of the first revision of the draft law previously provid-ed that “citizens shall, in accordance with law, cooperate with emergency measures taken by the government or medical and health institutions, such as medical examina-tions, quarantine, treatments and observations, that are meant to prevent, control and eliminate disease hazards”. These powers granted to the state in this draft were overly broad, making their abuse by local governments or healthcare institutions a distinct possibility, which would infringe the defensive rights to health enjoyed by individual citizens. The second revision of the draft law has removed these provisions, reflecting the cautious attitude of legislators with respect to limiting citizens’ right to health.
     
    The amendments by legislative bodies to articles providing for the right to health that are contained within the draft law are also noteworthy. Article 15 of the first revision of the draft law provides that “citizens of the People’s Republic of China enjoy the right to health in accordance with the law, regardless of nationality, race, gender, occupation, property status or religious belief. The state and society realize, protect and respect citizens’ rights to health according to law”. Article 4 of the second revision of the draft amends this to “citizens enjoy the right to health. The state and society respect and protect citizens’ right to health”. A comparison of the two texts reveals that legislators have omitted terms to the effect of “in accordance with law” when referring to citizens’ right to health. This omission indicates that legislators have become aware of the elements of the right to freedom contained within the right to health. Citizens can stay healthy through physical exercise and good hygiene, which is a right with which they are naturally endowed, also known as “inherent rights” or “natural rights”11, making it impossible for legislators to endow them with this right “in accordance with the law”. The state lies at the final link of the “chain of power” when it comes to defining the concepts of health and disease.
     
    B. Elements of social rights in the right to health
     
    Social rights refer to those fundamental conditions that ensure individuals enjoy healthy lives in society as well as constitutional safeguards of the various rights of the individual, which then require that the state actively creates an environment where the individual can adequately enjoy his freedom.12 Traditional theories regarding fundamental rights simplistically treat fundamental rights as a defensive right to freedom, which begs the question of whether it is possible to thereby infer safeguards for the individual’s social rights. The German Federal Constitutional Court holds the view that fundamental rights are not only individual rights, but also objective value systems established by the Constitution, forming higher principles that guide the execution and interpretation of laws by executive and judicial authorities. Later judicial opinions held that such “objective value systems” impose upon legislators the duty of protect-ing fundamental rights when enacting laws, ensuring that citizens can justly participate in public facilities, state benefits and procedures13. As it is equally important to guard against state interference and allow the state to protect its citizens, the protection of civil rights arises from these duties of protection on the part of the state. Andreas Voβkuhle, president of the German Federal Constitutional Court, holds the view that there are three aspects to the subjective rights derived from the transformation of the state’s obligations through the “objective value system”.14 First, the state is obligated to protect the individual from unlawful violation by a third party (the broadly defined “right to claim”). Second, the individual has the right to request participation in the allocation of existing state benefits (the “right to share”). Last but not least, those special benefits, outside of the existing scope, that individuals request of the state in accordance with fundamental rights (narrowly defined as the “right to claim”). The right to health can be divided into three aspects according to this framework.
     
    1. The right to health as a broadly defined right to claim
     
    Threats to individual freedom not only originate from the state but may also be caused by other individuals or nature. The objective legal connotations of fundamental rights require that states should bear the obligation of protecting and promoting the integrity of an individual’s life and person, protecting them from illegal infringement by a third party. Furthermore, as the state has a monopoly on the use of violence, it can more effectively protect and realize citizens’ rights, which also causes it to bear the obligation to act as an intermediary in individual cases, where citizens have the right to request protection. Article 21 of China’s People’s Police Law stipulates that “People’s policemen shall immediately come to the rescue when a citizen’s safety of the person or property is encroached upon or is in other dangerous situations; they shall, upon request, help citizens in settling their disputes; they shall handle without delay cases reported by citizens.” This article provides that when the safety of a citizen’s person is infringed by another, and is thus in jeopardy, the police and the administrative authorities should immediately render assistance in accordance with their offices and powers. Administrative bodies are obligated to handle these matters not only to safeguard the public interest but also to protect the victim’s personal rights.15 When police do not provide assistance, this provision allows citizens to seek redress through the courts.
     
    In contemporary society, where science and technology are in continuous development, the state’s protection of its citizens’ right to health is mainly reflected in the mitigation of risk, such as in the approval process for emerging technologies, the production and flow of medicines and food and the prevention and mitigation of pollution. Within the strictly defined boundaries of the laws related to health there is no lack of examples regarding the protective aspects of the right to health. With respect to the management of drugs and vaccines, the Vaccine Administration Law (Draft) submitted to the Standing Committee of the National People’s Congress for second review added a provision stating that “… vaccines urgently needed for the prevention and control of infectious diseases or emergency response shall be exempted from lot release with the approval of the medical products administration of the State Council.” There are similar provisions in the Law on Practicing Doctors, where Article 26 provides that “Doctors shall tell the patients or their family members the patients’ conditions truthfully” and that “Doctors shall obtain approval from the hospital and the consent of the patient or family members before conducting clinical treatment on an experimental basis.” These regulations both directly and indirectly ensure that citizens’ right to health are adequately protected. The state’s obligation to protect implies that legislators should weigh the right to health, in a comprehensive manner, with other legal interests when enacting laws and provide more appropriate protections by distinguishing between risk levels.
     
    2. The right to health as the right to share
     
    The fundamental rights contained within the right to health (as a right to share) refer to the rights of citizens to equitably participate in existing state benefits, also known as the “derived right to claim benefits”. Correspondingly, the “right to share” aspects of the right to health aims to safeguard the equitable allocation of existing healthcare resources among citizens. The United Nations Committee on Economic, Social and Cultural Rights advocates four assessment criteria regarding the realization of the right to health, i.e. the availability, accessibility, acceptability and quality of healthcare services, among which “accessibility” requires the absence of discrimination against any section of the population.
     
    Anand Grover, United Nations special rapporteur on the right to health from 2008 to 2014, has noted that although it is a fact that healthcare resources are lacking in member states, equal access to healthcare services for every citizen is the distribution of available resources, which state has the ability to immediately transform and implement, and it should not invoke the excuse of “gradual realization”.16
     
    Section 1 of Article 15 of the first revision of the draft law provides that “Citizens of the people’s Republic of China, regardless of nationality, race, gender, occupation, property status or religious belief, enjoy the right to health according to law”. Article 22 stipulates that “Medical institutions and their personnel should treat patients equally and respect their personal dignity.” Apart from preserving the provisions on equal treatment, the second revision goes one step further to include “guarantee and provide basic medical and health services for all” in Article 1, elevating the equitable allocation of healthcare resources to the status of a legislative goal in the Basic Healthcare Law. The requirement of equity proposed by legislators simply aims to prevent discrimination and differential treatment in the provision of healthcare services, thus making the allocation of healthcare resources fairer. Under the requirement for equity, there must be justifications for any inequitable treatment; the more severe the resulting interference with personal freedom and dignity, the more justified the underlying rea-son must be. Although the right to equity is in principle a commandment to legislators and public administration, equal access to services beneficial to individual health also requires patients to be treated equally during their interactions with healthcare institu-tions and medical personnel. “Right to share” problems in the right to health are especially prominent when it comes to human organ transplants, which determine whether patients live or die. China’s organ transplant “supply/demand ratio” is 1:50, implying that the vast majority of patients are unable to receive the organs they need to live.17 Although the law cannot provide an ultimate solution to the problem of allocating human organs, the state should approach the problem as a decision-maker (pluralization of interests) and with a view to enacting procedures (procedural fairness), ensuring that the allocation of human organs is not carried out in an arbitrary or biased manner.
     
    Chinese judicial opinions have also upheld the notion of fair access to healthcare resources. In “Human resources and Social Security Bureau of Dezhou Economic and Technological Development Zone vs. Zhang, Health Administration (Health) case”,18 the plaintiff had purchased medical insurance as a local resident. In 2016, he underwent cochlear implant surgery for neuropathic deafness, spending nearly 500,000 yuan on cochlear implants. The social insurance agency declined to honor his claim on the basis that cochlear implants did not fall within the scope of allowable claims under basic medical insurance for employed urban residents, whereas Shandong Province had issued provisions in 2014 requiring that the medical insurance systems for urban and rural residents be integrated. Thereafter, in principle, the administration of basic medical insurance for all residents should be implemented in accordance with relevant provisions regarding basic medical insurance for all employed residents. As determined by the presiding court, basic medical insurance for employed urban residents excludes reimbursements for children’s cochlear implants, whereas the same was included in the new rural cooperative medical system before integration.
     
    The court held that, after the integration of medical insurance systems for urban and rural residents, the scope of persons insured had expanded to include all insured urban and rural residents with the exception of employed urban residents, making it obvious that basic medical insurance for employed urban residents could no longer satisfy actual needs. As the plaintiff was a child/infant, applying the terms of the medical insurance agreement for employed urban residents to the plaintiff after he had paid premiums is inconsistent with the legislative goals of the underlying Social Insurance Law and is unfair to the defendant. Before integration, the new rural cooperative med-ical system had considered the healthcare needs of children and infants, making the scope of medical insurance fairer and more reasonable, leading the court to support the demands of the plaintiff. Equal access to the allocation of existing healthcare resources does not necessarily mean to indiscriminately provide healthcare services that are equal in every respect. The provision of healthcare services is ultimately tied to individual circumstances, requiring the state to consider the special needs of certain sectors of the population that are the result of physiology. Article 12 of the UN Conven-tion on the Elimination of All Forms of Discrimination Against Women requires that parties guarantee that women are able to access health care services on the basis of gender equality, and that “state parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free ser-vices where necessary, as well as adequate nutrition during pregnancy and lactation.” Article 84 of the second revision of the draft law stipulates that “The state formulates and implements plans regarding health services for minors, women, the elderly and the disabled, and enhances health services for key sectors of the population.” These provisions carry the risk of causing over-treatment and medical wastage even while ensuring that those sectors of the population listed above enjoy more targeted health-care services. For instance, the fact is that over-treatment of life-threatening diseases in the elderly not only constitutes wastage of public healthcare resources, but also lowers patients’ quality of life.
     
    3. The right to health as a narrowly defined right to claim
     
    Narrowly defined, the right to claim refers to the right of citizens, in accordance with their fundamental rights, to ask the state for material or monetary payment beyond the existing scope. It is generally agreed that laws regarding fundamental rights are overly abstract, and do not clearly define types, scopes of state benefits and the conditions thereof, thereby in principle depriving the individual of the “original right to claim”.19 With respect to the right to health, Article 3 of China’s Social Insurance Law provides that “The social insurance system follows the principle of wide coverage, modest benefits, multi-tiered programs and a sustainable system. The level of the social insurance system shall correspond to that of economic and social development.” Due to the scarcity of healthcare resources and socioeconomic constraints, it is impossible for citizens to directly infer the original right to claim from the right to health. Rather, they are subject to legislators’ specific constructs of the connotations of the right to health, i.e. the question of who is accorded what right of request (and how much he may request) based on which conditions. In this context, the right to health is constrained by the reservations of legislators, and therefore relative in terms of the connotations therein.
     
    Even so, the German Federal Constitutional Court held conservatively in its opin-ion on June 12, 2005, that persons insured under public medical insurance schemes are accorded the constitutional right to request treatment of diseases (Verfassungsun-mitte1barerLeistungsanspruchaufVersorgung). In that case, a juvenile suffering from Duchenne muscular dystrophy underwent bio-resonance therapy (an alternative therapy) as modern medicine has yet to develop an effective treatment for this disease. The insurance provider declined to honor his claim on the basis that this therapy was specifically excluded by the relevant provisions of the insurance agreement. After more than a decade of litigation, the juvenile finally filed a constitutional petition. The German Federal Constitutional Court first held that fundamental rights do not endow patients with the constitutional right to specific diagnosis or treatment procedures20. As health insurance resources are limited, it follows that the constitution does not require statutory medical insurance funds to underwrite all that may be needed to maintain or restore health21. Still, with respect to the case at hand, the German Federal Constitutional Court upheld the juvenile’s petition, holding that Section 1, Article 20 (the social State principle) and Clause 1, Section 2, Article 2 of the German Basic Law (“Every person shall have the right to life and physical integrity”) require that the right of patients to claim medical expenditures cannot be refused when the following conditions are met. First, the disease in question must be a life-threatening disease or may otherwise cause death under usual circumstances. Second, treatment(s) for this disease lack diagnostic and therapeutic procedures that are universally recognized and that meet medical standards. Final, it is a possibility that the therapies chosen by the insured person, and administered by a doctor, may cure the disease or at least have a significant beneficial effect.22
     
    Thereafter, the German Federal Social Court further refined these conditions when applying this opinion by the Federal Constitutional Court. On the one hand, the scope of a “disease” was expanded to include diseases evaluated to be similar to those described above, such as the irreversible loss of important sensory organs or important bodily functions. On the other hand, it was required that the therapies that patients request have demonstrated beneficial effect both in principle and in individual cases, in order to affirm that the benefits of such therapies outweighed the costs.23 When revising Volume 5 of the German Social Code (Statutory Health Insurance) in 2011, the German legislature compiled the content of the said judgement into Section 1a, Article 2, providing that when the above conditions are satisfied, the insured person may re-quest that health insurance institutions honor claims on the fees arising from medical services.24
     
    C. The right to health and the right to basic healthcare services
     
    The sections pertaining to the right to health in both the first and second revisions of the draft law are followed by the provision that “Citizens enjoy the right to basic medical and health services from the state and society according to law”. In contrast with the right to health, which bears elements of both the right to freedom and social rights, basic healthcare rights only bear social rights elements. The enjoyment of this right requires that the state take active actions, i.e. to establish basic healthcare systems and improve the provision of basic healthcare services.
     
    Given that China implements the social security model with regards to healthcare, the Chinese government does not directly provide basic healthcare services to patients; instead, the government ensures that they receive basic healthcare services. Although public hospitals receive subsidies directly from the government, they do not provide free medical services. Patients are required to “purchase”, or have social insurance agencies purchase these medical services on their behalf. Article 28 of the Social Insurance Law (“Medical expenses for pharmaceuticals listed in the basic medical insurance directory, for diagnosis and treatment services and application of medical care facilities covered by the basic medical insurance, and medical expenses for emergencies and rescue services, shall be paid from the basic medical insurance fund in accordance with national provisions.”) and Section 1, Article 29 of the same (“Direct transactions shall be arranged between social insurance agencies and medical institutions and pharmaceutical entities to settle for insured members the proportion of the medical expenses payable by the basic medical insurance fund.”) jointly provide that basic medical insurance funds and social insurance agencies play a central role in the provision of basic medical services.
     
    When the medical expenses incurred by the insured person are covered by these legal provisions, social insurance agencies should make payments from the basic medical insurance funds.25 That social insurance agencies pay the medical expenses incurred by the insured person after assessment of the merits of the claim is an admin-istrative payment. Non-payment or limited payment of medical expenses may infringe the social insurance rights of the insured person. With respect to such circumstances, Section 2, Article 8 3 of the Social Insurance Law clearly provides that, individuals may apply for administrative review or initiate administrative proceedings when social insurance agencies fail to honor legitimate social insurance benefit claims or oth-erwise violate other social insurance rights. Revisions to the Administrative Procedure Law affirmed this principle in Item 10, Section 1, Article 12.
     
    At present, basic health insurance in China is mainly administered at the prefectural and county level. Given regional economic disparities, the State has not enacted unified provisions regarding health insurance benefits, instead allowing each planning region a measure of autonomy based on the principle that fiscal revenue should cover fiscal outlays. 26 This has also caused regulations regarding basic medical insurance benefits to be issued mainly in the form of normative regulations such as “Medical Insurance Measures” issued by the various local people’s governments. When social insurance agencies fail to pay or only make partial payment of medical expenses in accordance with local medical insurance measures, insured persons often rely on pro-visions contained within Article 53 of the Administrative Procedure Law27 to request that courts review the legality of the normative regulation(s) when bringing lawsuits against social insurance agencies that refuse to pay social insurance benefits. Typical cases include “Social Security administrative Payment: Case of Sheng Muqing and Shaoxing Keqiao District Social Insurance Administration Bureau”,28 where the relevant law, Basic Medical Insurance Measures for Urban and Rural residents in Keqiao District (For Trial Implementation) had already excluded the possibility that the insured person can be reimbursed for medical expenses incurred in non-designated medical institutions. The court held that this was inconsistent with Section 2, Article 8 of Several Provisions on the Implementation of the Social Insurance Law, which provided that “Where an individual covered by basic medical insurance urgently requires emergency treatment or rescue, he/she can be hospitalized at a medical institution with which a service agreement has not been concluded; the scope of drugs necessary for rescue may be appropriately expanded.” Incidental review of local medical insurance schemes by judicial authorities strengthens patients’ basic healthcare rights to a certain extent.
     
    IV. The Right to Health as a National Goal
     
    National goals, also known as “decisions regarding national targets”, refer to the targets that the Constitution explicitly requires the State to meet. They are essentially duties required of the State as well as binding constitutional norms. National goals are clearly defined plans regarding actions to be taken by the State that form bench-marks and instructions that apply to the interpretation of legal norms.29 Constitutional scholars believe that, on the one hand, fundamental social rights cannot give rise to the “original right to claim” because they require specific construct by legislators. However, on the other hand, they have legal effect on the interpretation of legal norms and the exercise of discretionary powers and should therefore be understood as na-tional goals.30 As a fundamental right, the right to health mainly evaluates the status of the rights of individual citizens, whereas as a national goal, the right to health is more oriented towards the integration of State and society and mainly focuses on the realization of goals that transcend the level of the individual.
     
    A. Social security
     
    The social security that the State provides to ill or disabled Chinese citizens (Article 45 of the Constitution) not only protects the individual from adverse consequenc-es, but also augments efforts by workers to restore social productivity. Compared with the individualization of risk, social safeguards can boost the efficiency and efficacy of healthcare services and alleviate social inequality. Therefore, the social security sys-tem is a public interest that transcends the sum of individual interests and serves the wider society. Healthcare services available to the general public can promote social equality while social equality in turn promotes general health. Healthy citizens witness social justice and feel safe when they see that a neighbor or friend suffering from a disease receives reasonable basic healthcare services from the State. Therefore, providing adequate social security to ill or disabled citizens is also an important national goal for the State.
     
    B. Public health
     
    There are increasing amounts of research to indicate that healthcare services do not play a decisive role in the attainment and maintenance of public health. Health is influenced by genetic, environmental, lifestyle and social factors to a large extent,31 public health to plays an important role in health law. Public health refers to those measures taken by the State to promote overall societal health as well as prevent and reduce the incidence of disease. These measures mainly relate to the prevention and control of diseases, the management of public health incidents, environments beneficial to public health, the State guarantee of basic healthcare services and public education.32 The second revision of the draft law went so far as to enact dedicated provisions for basic public health services, requiring the State to limit factors that may pose a risk to health and take measures to prevent the outbreak of diseases.
     
    While beneficial to public health, there are potential risks to public health measures implemented by the State. The draft law stipulates that “The State implements a planned vaccination system. Citizens have the right and obligation to receive vaccines according to the national immunization plan”. After being obliged to vaccinate, citizens may experience abnormal reactions or even severe impairment. The suffering of these victims arise not only for the sake of their personal health, but also for the health of others. Hence, Article 46 of China’s Regulation on the Administration of Circulation and Vaccination of Vaccines provides that “Where, due to unusual response to vaccination, an inoculated person dies or becomes heavily disabled, or any of his organs or tissues is injured, he shall be paid a lump sum of compensation.” State compensation now falls squarely in the realm of liability for hazards in public law, making it irrelevant to consider whether a breach of care occurred in the implementation of mandatory vaccination when establishing if the State is obligated to provide compensation.33
     
    V. Constraints on the right to health
     
    Regardless of whether the right to health is a fundamental right or a national goal, it exists to ensure that citizens enjoy freedom and equality. However, unlimited rights do not exist. Rights may be constrained by legal conditions or constrained by the fundamental rights of other persons. Because of the three-fold nature of the concept of health, the right to health is constrained in three aspects: the “precondition of the possible”, concurrent requirements imposed by society and conflicts with other basic rights.34
     
    A. Precondition of the possible
     
    The “precondition of the possible”, also translated as “proviso of the possible” (Vorbehalt des Moglichen) refers to the case where requests made by citizens of the State are conditioned upon the State’s financial capacity.35 When the insured person accepts medical services within the scope covered by basic medical insurance, it implies that a corresponding sum must be withdrawn from basic medical insurance funds. Meanwhile, the scarcity of healthcare resources is not in doubt. Although legislators base their decisions when establishing basic medical insurance schemes on the professional opinion of medical institutions and doctors, it remains that they have to take economic considerations into account when defining the conditions and scope of benefits. In order to ensure the security of basic medical insurance funds, Article 71 of the second revision of the draft law requires that the State establishes reimbursement standards and modes that are sound and reasonable when designing basic medical insurance schemes, guide healthcare institutions in providing medical services rationally, ensure the orderly flow of patients and ensure that basic medical insurance funds are used efficiently. These measures taken by legislators can be termed “the rationalization of medical services”, i.e. healthcare resources are allocated efficiently, using objective standards, to eliminate waste and inefficiency.36 A common limitation of basic medical insurance is to determine the limitations of the medical institutions(with which service agreements have been concluded) and limitations to the medical services that can be provided.
     
    1. Constraints by healthcare institutions
     
    Section 1, Article 31 of the Social Insurance Law provides that social insurance agencies may sign service agreements with medical institutions to regulate medical service performance. Article 8 of Several Provisions on Implementing the Social In-surance Law of the People’s Republic of China provides that “Medical expenses in-curred by an individual covered by the basic medical insurance at a medical institution with which a service agreement has been concluded shall be paid with the basic med-ical insurance funds pursuant to the State provisions as long as they conform to the drug catalogue, diagnosis and treatment items and medical care service facilities stan-dards for the basic medical insurance. Where an individual covered by the basic medical insurance really needs emergency treatment or rescue, he/she can be hospitalized at a medical institution with which a service agreement has not been concluded; the scope of drugs necessary for rescue can be enlarged properly. The specific measures for medical services for the emergency treatment or rescue of individuals covered by the basic medical insurance shall be formulated by the areas subject to overall planning in light of the local actualities.” It can be observed from Article 8 that medical expenses incurred at medical institutions (with whom service agreements have been concluded) that satisfy these conditions will be, in principle, reimbursed from basic medical insurance funds; medical expenses incurred at other medical institutions are reimbursed only if there was a genuine need for emergency treatment or resuscitation.
     
    What is controversial in practice is the tendency of patients to be transferred from “service-agreement” medical institutions to other medical institutions, especially when referred by doctors. To a large extent, this occurs because “service-agreement” institutions lack the requisite medical or surgical facilities. At this point, determination of whether a “genuine need for emergency treatment or resuscitation” exists determines the insured person has the right to request basic healthcare services. In “Social Security Administrative Payment: Case of Sheng Muqing and Shaoxing Keqiao District Social Insurance Administration Bureau”, the court of second instance held that if the patient’s transfer was referred by a professional doctor, then social insurance agencies should determine, after investigation, if the requestor’s medical condition was urgent, whether treatment was of an emergency nature, and whether there was a reasonable basis for the referral, instead of arbitrarily refusing to honor claims.37
     
    2. Constraints by healthcare services
     
    Section 2, Article 31 of the Social Insurance Law provides that “Medical insti-tutions shall provide to insured members medical services deemed as suitable and necessary”. When providing medical services, both institutions and doctors should “not duplicate check-ups”, refrain from prescribing drugs that have not been proven to be effective, only administer evidence-based treatments, evaluate the risks and benefits associated with various therapies and promote science-based medical decision-making. At the same time, the setbacks associated with measures to rationalize the pro-vision of medical services should also be noted. Rationalization does not mandate medical services standards, but instead imposes a limit on available resources, leaving medical institutions and doctors to address the problem of resource scarcity.38 Taking the “global budget system”, one of the measures that attempted to rationalize the provision of medical services, as an example, health insurance institutions negotiate and determine each hospital’s annual total budget (for medical claims). This payment method is simple to implement and can constrain wasteful treatments by medical institutions to a greater extent, making it the most popular means by which Chinese medical insurers seek to control costs. According to media reports, some primary care medical institutions in Beijing skimped on medical insurance monies by seeing less patients and dispensing less medications in December 2012 after the implementation of this measure.39 Such practices not only undermine the trust between patients and doctors, but also poses unpredictable risks to patients’ lives and health. In Chaoulli v. Quebec, the Supreme Court of Canada held that “Where lack of timely health care can result in death, the protection of life is engaged; where it can result in serious psychological and physical suffering, the protection of security of the person is triggered.” 40
     
    A more radical approach taken by the State in constraining the provision of med-ical services is to exclude, in local medical insurance measures, specific drugs, diagnostics or treatments from being reimbursable from basic medical insurance funds. Since social insurance agencies refuse to pay these claims, the insured person must bear all the expenses for these specific drugs, diagnostics or treatments. When these explicit “rationing” measures have the potential to determine if a patient lives or dies, they severely obstruct patients’ right to health. Because these measures are enacted in conjunction with the economic considerations of legislators, courts should review them in a more cautious manner.
     
    A case in point is “Hui Shaoping v. Gaizhou Medical Insurance Management Center”, decided by the Higher People’s Court of Liaoning Province. The plaintiff’s husband (who died in 2005) was diagnosed with liver cancer. In March 2003, the local medical insurance management center agreed to transfer him to a hospital in Beijing for treatment, where he underwent a liver transplant. When the plaintiff filed a claim for reimbursement, the local medical insurance management center refused payment on the grounds that local medical insurance measures explicitly excluded liver trans-plants. In 2013, when the case was tried before the Higher People’s Court of Liaoning Province, the court held that while it was true that liver transplants were not covered by the local insurance measures, the plaintiff relied on the insurer as the medical insurance center had consented to the transfer on the referral approval form required for medical insurance reimbursement.41 Although the judge resolved the case by referring to the “principle of reliance interest protection”, there are still many problems worthy of consideration, including the following. How should the legal nature of the consent of the medical insurance agency to the referral/transfer be determined? How is it legitimate for the local government to exclude diagnostics and treatments that determine if a patient lives or dies from reimbursement? Because life and health are individual needs, a tension exists between protection of an individual’s right to health and up-keeping basic medical insurance funds, which is a concern throughout the entire basic medical insurance system.42
     
    B. Concurrent requirements imposed by society
     
    In a modern society, social insurance is based on reciprocity between the members of that society. Every member of society comes together to jointly shoulder the risks that each member faces, thus forming a community based on social solidarity, where members bear obligations to and support one another.43 Per jurisprudential views based on social solidarity, members of the group contribute to the best of their ability, without considering “equivalence of economic exchange”. Rather, they come together selflessly when others are in trouble. However, such communities can survive and flourish only if they are not excessively burdened, which requires that individual citizens proactively take on responsibility for their health, refraining from or relying less on community assistance44. Ronald Dworkin suggests that although the just allocation of resources is endowment-insensitive, it is ambition-sensitive. In short, resource inequity that results from autonomous individual decisions is just.45 In view of the highly subjective nature of health, the individual has the autonomous right to define and decide these matters, which means that individual citizens must bear responsibility for their own health.
     
    The principle of self-responsibility in health affairs respects the individual’s autonomy and initiative and encourages the individual to actively remain healthy instead of making excessive demands on healthcare resources, which also enables the coun-try to be free of “paternalistic” allocation mechanisms. For this reason, the second revision of the draft law dedicated one chapter to the topic of “health promotion”, which provides, in Article 73, that “Citizens shall establish and practice the self-health management concept, actively learn health knowledge, improve their health literacy, strengthen health management, and form healthy lifestyles.” Article 1 of the section on Statutory Health Insurance (Volume 5 of the German Social Code) also clearly stipulates that insured persons shall bear joint responsibility for their health, maintain a healthy lifestyle, adopt preventive healthcare measures and actively cooperate with treatments, in order to stay healthy or avoid even more adverse outcomes.
     
    Under the principle of self-responsibility, if citizens actively engage in acts that result in direct harm to their physical and mental health, the state will “punish” them by refusing to reimburse their medical expenses or increasing the co-payment amount that insured persons are liable for. For example, Section 1, Article 23 of the Beijing Municipal Basic Medical Insurance Measures for Urban and Rural Residents stipulates that the medical insurance fund available to urban and rural residents shall not be used to reimburse medical expenses incurred in the treatment of injuries caused by suicide attempts, self-mutilation, alcohol abuse, drug abuse, fighting or other illegal acts. In the same way, the medical expenses caused by the insured’s own intentional or illegal crimes are excluded from reimbursement. The difference is that there is no exclusion for “attempted suicide” in Section 1, Article 52 of Statutory Health Insur-ance in Volume 5 of the German Social Code. Whether a person attempting to commit suicide is competent is still a controversial medical topic46. Unnecessary “improper behavior” by citizens will also lead to the rejection of claims. For example, Guangxi makes it clear that medical expenses incurred due to adverse reactions caused by plastic surgery will not be reimbursed. Section 2, Article 52 of Statutory Health Insurance also stipulates that health institutions are not liable for diseases suffered by the insured as a result of cosmetic procedures, body piercings or tattooing. Inevitably, this regula-tion has been roundly criticized. Many scholars believe that the many factors putting insured persons at risk are unquantifiable (fruit picking, hiking, etc.). Why have legislators only included behaviors may be attributed to specific groups of people? The discriminatory nature of such legislations can be said to violate rights to equality.47
     
    It is not only the behaviors that directly affect health that are strictly regulated by the state. Routine preventive check-ups have also become a regulatory tool used by legislators to urge insured persons to pay attention to their own health. Article 65A of Statutory Health Insurance stipulates that after participating in disease prevention and health “guidance” schemes, the insured has the right to request rewards from medical insurance institutions; Article 62 goes so far as to provide that if insured per-sons suffering from chronic disease do not participate in the preventive check-ups, their co-payment rates will be increased from 1-2 percent of their incomes. With the ubiquity of “smart wearable devices” and the widespread application of big data, it is not technologically challenging for medical insurance institutions to obtain insured persons’ health data. With the help of these data, medical insurance institutions can deploy more targeted measures. Legislators may very well generalize the above-mentioned laws and regulations and require insured persons to adopt healthy lifestyles (such as jogging a certain distance a day), failing which insured persons would be “sanc-tioned”. Gradually, insured persons would be forced to adopt healthy lifestyles and bear “obligations for their own health”.48
     
    By emphasizing individual autonomy and accountability, and mandating that citizens are obliged to lead healthy lifestyles, the state can alleviate the severe economic burden imposed by the prevalence of chronic disease. However, such “obligations” suffer from the following shortcomings. Firstly, preventive check-ups cannot actually prevent the occurrence of diseases; they impact only when intervention and treatment is carried out. Furthermore, there is no scientific proof as to whether it does promote health. Second, an individual should be free to decide whether to undergo preventive check-ups and adopt a specific lifestyle without interference from the law. Third, ex-cessive emphasis on self-responsibility attributes the attainment and maintenance of good health entirely to individuals (a form of “accusing victims”), allows the state to abrogate its responsibilities to enacts public health policy, and ignores the significant impact of social factors in personal health.49 The guarantee of social rights is to allow individuals to achieve real freedom, rather than to let them be unjustly “squeezed”. To sum up, citizens are not obliged to stay healthy or to be “healthier”; the lack of a healthy lifestyle should not lead to legal sanctions. Self-responsibility does not consti-tute an obligation imposed by law.50
     
    C. Conflict with other fundamental rights
     
    Conflicts among fundamental rights occur when the fundamental rights of several individuals are in conflict, i.e. that the exercise of one’s fundamental rights will obstruct another’s exercise of his fundamental rights.51 What cannot be ignored when emphasizing that citizens pay attention to their own health is that the right to personal health is likely to conflict with other people’s basic rights, and the state reconciles this by weighing the interests of both or multiple parties. Such decisions may then form legal obligations on the part of others, examples of which are the laws that protect workers and consumers. Article 13 of China’s Social Insurance Law stipulates that “Each employee shall enroll in the work injury insurance system. The employer shall make work injury contributions, and the employee is not liable for contributions.” Although enterprises enjoy professional freedom, they must purchase work injury insurance (and make payments) on their employees’ behalf to ensure that workers who suffer work-related injuries receive medical services as are reasonable and necessary. As there is no consensus on the impact of genetically modified food on human health, Article 69 of China’s Food Safety Law, which was revised in 2015, stipulates that “Conspicuous indications shall be made as legally required in the production of or trade in genetically modified food”, a bid to protect the right of the consumer to knowledge that may impact his health.
     
    The law not only imposes obligations upon enterprises, but also on individuals when their health status impacts others. For example, Article 74 of the second revision of the draft law stipulates that “Citizens shall respect the health rights and interests of others, and shall not damage the health and social public interests of others.” To what extent can legislators restrict the fundamental rights of others in order to safeguard the health rights and interests of citizens? This remains a controversial question. Taking AIDS prevention and control as an example, Article 38 of the Regulations on the Prevention and Treatment of HIV/AIDS stipulates that HIV infected persons and AIDS patients are responsible for “informing the facts of HIV infection and pathogenesis to those who have sexual relationships with them in a timely manner”. That is, infected persons have the obligation to inform their sexual partners. Legislators neglected to clarify the legal consequences of abrogating this obligation.52 According to Article 21 of Taiwan’s Regulations on the Prevention and Control of HIV Infection and the Protection of the Rights and Interests of Infected Persons, those who are aware that they are infected, conceal dangerous sexual behavior or share needles, diluents or con-tainers with others, and thus infect others, shall be sentenced to imprisonment for not less than five years, but not more than 12 years. Because HIV infection is an individ-ual, private affair, the above measures obviously sacrifice the individual rights of the infected to protect others’ rights to health. However, there are also surveys that show that criminalization of concealing, disclosing or spreading AIDS infections deter indi-viduals from taking HIV tests,53meaning that the above-mentioned criminal measures put more people at risk. Legislators have yet to solve the problem of balancing the protection of an individual’s right to dignity against others’ rights to health.
     
    An equally thorny issue is the ban on smoking in enclosed public spaces. Article 9 of Regulations by Beijing Municipality on the Control of Smoking, implemented in 2015, stipulates that “smoking is prohibited in public places, indoor areas of work-places and public transportation vehicles.” This comprehensive ban protects citizens, including workers, from the dangers of second-hand smoke. In contrast, the Regula-tions on Smoking in Public Places (Draft for Comments), issued by the State Council in 2016, limits non-smoking areas in workplaces to common areas, and allows indoor public places, such as restaurants and entertainment venues, to set up smoking areas. With the help of “selective smoking bans”, legislators try to protect smokers’ freedom to smoke indoors. Because smoke from the smoking area can spread to other spaces in the workplace through various channels, thus harming the health of others, and because it is difficult for authorities to enforce selective bans, scholars believe that the legislation may ultimately fail to fulfill its goal of “reducing and eliminating the harm of tobacco smoke and protecting public health”.54
     
    The indecision of legislators when it comes to balancing public health and freedom of behavior has not prevented judicial authorities from upholding smoking bans in enclosed spaces. In what the media called “the first litigation regarding smoke-free public places in China”,55 the court held that “smoking is the freedom and right of smokers, but these freedoms and rights are not absolute and boundless. Compared with outdoor public places, the train is a more enclosed public space. Rights in this space are often more likely to overlap or even come into conflict. Passengers rights to health will conflict with the rights and interests of smokers” and that “generally speaking, the right to life is supersedes the right to health, and the right to health supersedes other rights, such as property rights.” According to the court, the right to health superseded the right to smoke. After considering societal development and scientific/ technological progress, the court finally ruled that China Railway Harbin Bureau must remove 1,301 smoking areas. This case analyzed in detail the conflict between passengers’ rights to health and smokers’ right to freedom, their comparative status and solu-tions thereof. It is worthwhile to observe whether this will promote comprehensive anti-smoking legislation in China.
     
    VI. Conclusion
     
    The highly subjective, procedural and socially reliant nature of health endows the right to health with complex connotations. The right to health, which bears ele-ments of the right to freedom as well as social rights, requires separate construction by legislators according to its connotations instead of arbitrarily imposing “according to law” restrictions. In principle, citizens should only be allowed to request the equal opportunity to participate in the allocation of existing healthcare resources and not to be excluded by society. They do not have the right to request that the state provides more than what existing resources allow. In practice, the most important embodiment of the right to health is that when social insurance agencies infringe upon the rights to basic medical services, insured persons may file an administrative lawsuit. Citizens’ right to health is also strengthened when the administrative ligitation system allows for review of regulatory documents.
     
    The right to health, based on the above, is mainly restricted in three aspects: the precondition of the possible, other requirements concurrently imposed by society and conflict with other fundamental rights. Given economic considerations, the state imposes constraints on the right to health through limits on medical institutions and medical services. This leads to the status of the insured person, as the wielder of these rights, to be marginalized. On the one hand, in order to protect citizens’ health, legisla-tors sacrifice others’ rights to dignity or freedom of behavior in specific circumstances. On the other hand, they require insured persons to take responsibility for their own health and have even caused the right to health to become an “obligation” in certain situations. All these problems require further examination at the constitutional level. In particular, the original intent of a state’s adoption of the rule of law, i.e. to safeguard personal freedom, must not be neglected.
     
    (Translated by ZHANG Kuanxu)
     
     
    *ZHANG Dongyang ( 張冬陽 ), Lecturer and Doctor of Law, School of Law, China University of Political Science and Law. This paper is supported by the Ministry of Justice’s National Research project on the Theory of Law and the Rule of Law (Serial No.: 17SFB306) and China University of Political Science and Law’s Annual Research and Innovation Project on the Legal Attributes and Rights to Relief Contained in Road Traffic Signals (Serial No.: 19ZFQ82007)
     
    1.Shen Weixing, “Reconstruction of Doctor-Patient Relationships and the Enactment of Chinese Healthcare Laws”, Law Science 12 (2015): 89.
     
    2.Liu Bibo, “The Historical Construction of the Right to Health”, Journal of Human Rights, vol. 20 (Beijing: Social Sciences Academic Press, 2018), 108.
     
    3.For more regarding health as a source of rights, see Li Guangde, “Exploring the Fali of Health as a Legal Right”, Law and Social Development 3 (2019): 25.
     
    4.Eberhard Schmidt- A?mann, Grundrechtspositionen und Legitimationsfragen im offentlichen Gesundheitswesen, 2001, S. 16.
     
    5.C. Pestalozza, Das Recht auf Gesundheit-Verfassungsrechtliche Dimensionen, Bundesgesundheitsblatt 2007, 1113-1114.
     
    6.Jiao Hongchang, “Right to Health as a Fundamental Human Right”, Journal of China University of Political Science and Law 1 (2010): 16.
     
    7.Chen Zheng, “State’s Duty to Protect Fundamental Rights”, Chinese Journal of Law 1 (2018): 5152.
     
    8.Chen Yunliang, “On the Institutionalization of Basic Healthcare Services”, Science of Law 2 (2014): 83.
     
    9.Lin Zhaoyun and Bao Yin, In Police Code (Taipei: Wu-Nan Book Inc, 2016), 430.
     
    10.Gao Qinwei, “On the Right to Health Care as a Social Right”, Jianghan Tribune 8 (2015): 124.
     
    11.Zhu Jie, Judicial Protection of Rights in the Taiwan Region - Selected Cases, (Beijing: Kyushu Press, 2013), 306.
     
    12.Chen Xinmin, Fundamental Theory of German Public Law, vol. 2 (Beijing: Law Press, 2010), 440.
     
    13.Zhang Xiang, “The Dual Nature of Fundamental Rights”, Cass Journal of Law 3 (2015): 25.
     
    14.Andreas Voβkuhle und Anne Bettina Kaiser, Funktionen der Grundrechte, JuS 2011, 411.
     
    15.Zhao Hong, “Application of Protection Standard Theory to the Qualification of Complainants”, Journal of Beijing University of Aeronautics and Astronautics (Social Sciences Edition) 5 (2018): 16..
     
    16.Anand Grover und Fiona Lander, Das Recht auf Gesundheit in Theorie und Praxis, Vereinte Nationen 2012, 214-215.
     
    17.Wang Fengmin, “Study on Expanding Donor Source of Human Organ Transplant”, Science Technology and Law 3 (2010): 19.
     
    18.Administrative Judgment of the Intermediate People’s Court of Dezhou City, (2017) Shandong Court 14, Fi-nal Judgement, Case 15.
     
    19. Zhang Xiang, “The Dual Nature of Fundamental Rights”, 25..
     
    20.20 BVerfG, Beschluss vom 06. Dezember 2005-1 BvR 347/98, Rn. 55.
     
    21.Ibid., 58.
     
    22.Ibid, 64.
     
    23.Frank Bockholdt, Die “Nikolaus-Rechtsprechung” des BVerfG-Eine Bestandsaufnahme, NZS 2017, 569 - 571.
     
    24.BT-Drs. 17/6906, S.52 f.
     
    25.Administrative Judgment of the Intermediate People’s Court of Dezhou City, (2017) Shandong Court 14, Fi-nal Judgement, Case 15.
     
    26.Administrative Judgment by Jilin Higher People’s court, (2018) Jilin, Administrative Appeal, Case 1; Administrative Judgment by Changde Intermediate People’s Court of Hunan Province, (2016) Hunan, Court 07, Final Judgement, Case 133.
     
    27.Relevant provision: “Where a citizen, a legal person, or any other organization deems that a regulatory document developed by a department of the State Council or by a local people's government or a department thereof, based on which the alleged administrative action was taken, is illegal, the citizen, legal person, or other organization may concurrently file a request for review of the regulatory document when filing a com-plaint against the administrative action.”
     
    28.Administrative Judgment by Intermediate People's Court of Shaoxing City, Zhejiang Province, (2016) Zheji-ang, Court 06, Final Judgement, Case 218.
     
    29.BT-Drs.15/5560, S. 2.
     
    30.Marcus Schladebach, Staatszielbestimmungen im Verfassungsrecht, JuS 2018, 118-120.
     
    31.Stefan Huster, Gesundheitsgerechtigkeit: Public Health im Sozialstaat, JZ 2008, 859, 861.
     
    32.Xie Zhiyong, In General Theory of Health Law (Beijing: China University of Political Science and Law Press, 2019), 8.
     
    33.Fu Chuangyu, Nature and Composition of Mandatory Vaccination Compensation Liability, China Legal Sci-ence 4 (2017): 148.
     
    34.C. Pesta1ozza (Fn5), 113-117.
     
    35.Liu Jianhong, Fundamental Human Rights Safeguards and Routes to Administrative Relief (1) (Taipei: Angle Publishing, 2019), 5
     
    36.3 Johannes Heyers, Moglichkeiten und Grenzen einer Okonomisierung des Sozialrechts am Beispiel der Priorisierung in der Gesetzlichen Krankenversicherung, MedR 2016, 857-858.
     
    37.Administrative Judgment by Intermediate People's Court of Shaoxing City, Zhejiang Province, (2016) Zhejiang, Court 06, Final Judgement, Case 218.
     
    38.Stefan Huster, Soziale Gesundheitsgerechtigkeit-Sparen, umverteilen, vorsorgen?, 2012, 30.
     
    39.Li Zijun, “Primary Care Hospitals Once Again Seek to Reduce Costs of Medical Insurance Claims at Year-End”, Beijing Business Today, December 18, 2012.
     
    40.Folland, S., Stano, M and Goodman, A. The Economics of Health and Healthcare, sixth edition (Beijing: China Renmin University Press, 2011), 523.
     
    41.Li Rui, “Patients Have the Right to Reliance Interest when Medical Insurance Agencies Approve Transfers or Referrals”, People’s Judicature 14 (2014): 64..
     
    42.Hong Yanqing, “An Alternative Perspective on Public Health Law”, Global Law Review 1 (2012): 23.
     
    43.Zhuang Han, Value Orientation and System Introspection of Social Insurance Law, Social Security Studies 2 (2012): 10.
     
    44.Jorg W. Althammer und Heinz Lampert, Lehrbuch der Sozialpolitik, 9. Aufl. 2014, S. 410.
     
    45.Ronald Dworkin, “What is Equality? Part 2: Equality of Resources,” Philosophy and Public Affairs 10 (1981), 311.
     
    46.LSG Berlin-Brandenburg, Beschluss vom 11. 12. 2007-L1 B 616/07 KR ER.
     
    47.Felix Welti, Gibtesein Recht auf bestmogliche Gesundheit? Freiheits-und gleichheitsrechtliche Implikationen, GesR 2015, 1, 7.
     
    48.Wolfram H. Eberbach, Kommt eine verbindliche “Gesundheitspflicht”?, MedR 2010, 756, 766.
     
    49.Stefan Huster (Fn.30), 866.
     
    50.Hence, the second revision of the draft law refrained using “obligation to health” or similar terms.
     
    51.Zhang Xiang, “Normative Structure and Resolution Model of Basic Rights Conflict”, Studies in Law and Business 4 (2006): 94..
     
    52.Article 12 of Interpretation of the Supreme People's Court and the Supreme People’s Procuratorate on Sever-al Issues concerning the Application of Law in the Handling of Criminal Cases regarding Organizing, Forc-ing, Inducing, Sheltering, or Introducing Prostitution only provides for situations where “the person has sex with other persons by deliberately adopting no preventive measures while knowing that he or she is infected with HIV.”
     
    53.At the 29th meeting of the UNAIDS Programme Coordinating Committee held on December 13, 2011, PCB civil society organizations' representatives reported their conclusions based on the “criminalization of AIDS” in the United Kingdom and Tanzania.
     
    54.Cui Xiaobo, “Regression in Anti-Smoking Legislation”, Diyi Caijing Ribao, May 31, 2016.
     
    55.Civil Judgment by Beijing Railway Transport Court, (2017) Beijing, Court 7101, First Hearing (Civil), Case 875.
     
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