风险社会视角下合规疫苗接种致害的国家责任研究
发布时间：2018-11-14 15:59
【摘要】：在现有的医疗和科技条件下,疫苗的副作用不可能被完全消除,大规模的疫苗接种将无可避免地造成少数接种者的伤害,而疫苗接种过程中国家公权力的介入引起了相应的国家责任问题。我国采用了强制性接种与自愿性接种相结合的模式。在最为严重的传染病面前,行政机关采用强制的方式保障民众普遍接种疫苗,从而维护个人健康并增进公共福利。对于相对而言并不是特别严重的其他传染疾病,则由民众自主选择是否接种,政府在其中仅承担信息发布等任务。2010年《国家赔偿法》确立了违法归责原则与结果归责原则相结合的归责体系,但依然没有彻底解决归责原则等核心问题的争议。而我国的国家补偿制度则依然缺乏相应的法律规范乃至宪法依据。在此基础上考察现行的疫苗接种致害国家责任承担机制可发现,我国目前在合规疫苗接种致害的国家责任承担上仅仅规定了极其有限的国家补偿制度,而并未引入国家赔偿制度。尽管行政机关在免疫计划制定等多个方面行使公权力,却未按照“权责一致”的行政法基本原则对权力行使中造成的损害负责。而现有的补偿制度也存在着诸如补偿范围过窄、补偿程序不公正、补偿中的因果关系认定困难以及地方规则差异大等一系列问题。疫苗接种规则的确立实质上是国家对风险的权衡。在风险社会到来的大背景之下,传统的国家责任体系已经不敷应用。对风险的注意义务使得国家责任的范围扩大,而风险的普遍性、不确定性则致使国家责任更多面向权利救济而非责任追究。国家责任体系必须对此做出积极的回应与变革。具体而言,在我国合规疫苗接种致害的国家责任建构中,应当通过对违法归责原则的扩张解释或对过错归责原则的引入,确立违反注意义务的国家赔偿责任。在具体构成要件上,应以客观化的高度注意义务标准考量国家是否存有过错,将政府强制或鼓励接种的行为视为行使公权力的行为,并用“法律因果关系”替代“科学因果关系”进行因果关系的判断。完善现有的国家补偿制度首先需要以《宪法》第三十三条第三款和第四十一条第三款作为国家补偿的宪法依据和理论基础;其次要拓展现有国家补偿的范围,将心因性反应、偶合反应致害以及第二类疫苗接种中的一部分致害情形纳入补偿范围中;再次,需要从增强制度公正性的角度完善补偿机制的启动程序,增加听取当事人意见的环节并提供对鉴定不服的救济途径;而国家补偿中因果关系认定的规则也需要完成从“科学因果关系”向“法律因果关系”的转变;最后还需对各地方立法进行统一。
[Abstract]:Under existing medical and technological conditions, the side effects of vaccines cannot be completely eliminated, and mass vaccination will inevitably cause harm to a small number of vaccinators. The intervention of the public power in the vaccination process caused the corresponding problems of national responsibility. Our country has adopted the pattern of compulsory inoculation and voluntary inoculation. In the face of the most serious infectious diseases, the executive authorities use compulsory means to protect the general population vaccination, thereby protecting personal health and public welfare. For other infectious diseases that are relatively not particularly serious, it is up to the population to choose whether or not to vaccinate. The government only undertakes the task of releasing information. In 2010, the State compensation Law established the imputation system which combines the principle of imputation with the principle of result imputation, but still has not solved the dispute of the principle of imputation and other core issues. But our country's national compensation system still lacks the corresponding legal norm and even the constitutional basis. On the basis of this, we can find that the current national liability assumption mechanism of vaccination damage can be found that our country has only stipulated a very limited national compensation system on the national liability assumption of compliance vaccination damage at present. The state compensation system has not been introduced. Although the administrative organs exercise public power in many aspects, such as immunization plan formulation, they are not responsible for the damage caused in the exercise of power according to the basic principle of "consistent power and responsibility". However, the existing compensation system also has a series of problems, such as too narrow compensation scope, unfair compensation procedure, difficulty in determining causality in compensation, and great differences in local rules and so on. The establishment of vaccination rules is essentially a national balancing of risks. Under the background of the arrival of risk society, the traditional system of state responsibility has been inadequate. The duty of care on risk makes the scope of state responsibility expand, while the universality of risk and uncertainty lead to the responsibility of state facing more rights relief than accountability. The system of state responsibility must make a positive response and change to this. In particular, in the construction of the national responsibility for the damage caused by the compliance vaccination, the liability of the state for violating the duty of care should be established through the expansion of the principle of liability for illegal liability or the introduction of the principle of fault imputation. In the specific constituent elements, we should consider whether there is fault in the state with the highly objective standard of duty of care, and regard the act of government compulsion or encouragement of inoculation as the act of exercising public power. And "legal causality" instead of "scientific causality" to judge causality. In order to perfect the existing state compensation system, it is necessary to take Article 33, paragraph 3, and Article 41, paragraph 3, of the Constitution as the constitutional basis and theoretical basis for state compensation. Secondly, the scope of national compensation should be expanded to include psychological response, coupling reaction and part of the second type vaccination. Thirdly, it is necessary to improve the starting procedure of compensation mechanism from the angle of enhancing the fairness of the system, increase the link of hearing the opinions of the parties and provide the remedy way of disagreeing with the appraisal. However, the rules of determining causality in state compensation also need to complete the transformation from "scientific causality" to "legal causality"; finally, it is necessary to unify the local legislation.
【学位授予单位】：首都经济贸易大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.1;D922.16
本文编号：2331632
[Abstract]:Under existing medical and technological conditions, the side effects of vaccines cannot be completely eliminated, and mass vaccination will inevitably cause harm to a small number of vaccinators. The intervention of the public power in the vaccination process caused the corresponding problems of national responsibility. Our country has adopted the pattern of compulsory inoculation and voluntary inoculation. In the face of the most serious infectious diseases, the executive authorities use compulsory means to protect the general population vaccination, thereby protecting personal health and public welfare. For other infectious diseases that are relatively not particularly serious, it is up to the population to choose whether or not to vaccinate. The government only undertakes the task of releasing information. In 2010, the State compensation Law established the imputation system which combines the principle of imputation with the principle of result imputation, but still has not solved the dispute of the principle of imputation and other core issues. But our country's national compensation system still lacks the corresponding legal norm and even the constitutional basis. On the basis of this, we can find that the current national liability assumption mechanism of vaccination damage can be found that our country has only stipulated a very limited national compensation system on the national liability assumption of compliance vaccination damage at present. The state compensation system has not been introduced. Although the administrative organs exercise public power in many aspects, such as immunization plan formulation, they are not responsible for the damage caused in the exercise of power according to the basic principle of "consistent power and responsibility". However, the existing compensation system also has a series of problems, such as too narrow compensation scope, unfair compensation procedure, difficulty in determining causality in compensation, and great differences in local rules and so on. The establishment of vaccination rules is essentially a national balancing of risks. Under the background of the arrival of risk society, the traditional system of state responsibility has been inadequate. The duty of care on risk makes the scope of state responsibility expand, while the universality of risk and uncertainty lead to the responsibility of state facing more rights relief than accountability. The system of state responsibility must make a positive response and change to this. In particular, in the construction of the national responsibility for the damage caused by the compliance vaccination, the liability of the state for violating the duty of care should be established through the expansion of the principle of liability for illegal liability or the introduction of the principle of fault imputation. In the specific constituent elements, we should consider whether there is fault in the state with the highly objective standard of duty of care, and regard the act of government compulsion or encouragement of inoculation as the act of exercising public power. And "legal causality" instead of "scientific causality" to judge causality. In order to perfect the existing state compensation system, it is necessary to take Article 33, paragraph 3, and Article 41, paragraph 3, of the Constitution as the constitutional basis and theoretical basis for state compensation. Secondly, the scope of national compensation should be expanded to include psychological response, coupling reaction and part of the second type vaccination. Thirdly, it is necessary to improve the starting procedure of compensation mechanism from the angle of enhancing the fairness of the system, increase the link of hearing the opinions of the parties and provide the remedy way of disagreeing with the appraisal. However, the rules of determining causality in state compensation also need to complete the transformation from "scientific causality" to "legal causality"; finally, it is necessary to unify the local legislation.
【学位授予单位】：首都经济贸易大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D922.1;D922.16
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