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一直以来,公共卫生以控制传染性疾病的蔓延为首要目的。相应地,公共卫生法制的工作重心和学术讨论,也主要集中于如何规范控制疾病传染过程中政府公权力的行使。而近年来全球范围内非传染性慢性疾病,例如糖尿病、肥胖和吸烟导致的各种心脏病和癌症等,逐渐取代传染性疾病,成为导致人类患病以及死亡的主要原因。为了应对客观情况的变化,公共卫生措施不断突破传统的法律边界,以继续发挥其保护和促进公众健康的作用。面对公共卫生措施的革新步伐,我们对公共卫生法制的思考也应该推陈出新。本文以控烟和肥胖防控等新兴的公共卫生措施为例,揭示传统法学理论视角的不足,并提供一个以社会正义为导向、群体为视角的法理框架。
Public health has long been the primary goal of controlling the spread of communicable diseases. Accordingly, the focus of public health law and academic discussion, but also mainly focused on how to regulate the control of infectious diseases in the process of the exercise of public power. In recent years, non-communicable chronic diseases worldwide, such as diabetes, obesity and various heart diseases and cancers caused by smoking, have gradually replaced infectious diseases and become the leading cause of illness and death in humans. In response to changes in the objective situation, public health measures continue to break the traditional legal boundaries and continue to play their role in protecting and promoting public health. In the face of the pace of innovation in public health measures, our thinking on the legal system of public health should be renewed. Taking the new public health measures such as tobacco control and obesity prevention and control as an example, this article reveals the shortcomings of the perspective of traditional jurisprudence and provides a legal framework based on social justice and community perspective.