醫(yī)療保障權(quán)研究
發(fā)布時間：2018-12-27 06:43
【摘要】：歷史上，醫(yī)療保障經(jīng)歷了由恩惠到權(quán)利的演變。歐洲中世紀(jì)戰(zhàn)亂頻仍，國家無力承擔(dān)醫(yī)療保障義務(wù)，雖然有《伊麗莎白濟貧法》關(guān)于醫(yī)療患者醫(yī)療救助的規(guī)定，但嚴(yán)格意義上講，公民并不享有醫(yī)療保障權(quán)；經(jīng)過兩次產(chǎn)業(yè)革命的發(fā)展，資本主義生產(chǎn)方式得以確立，以1883年德國《企業(yè)工人疾病保險法》為開端，公民的醫(yī)療保障權(quán)首次以法律形式明確提出，并要求國家履行義務(wù)保障公民的醫(yī)療保障權(quán)；二次世界大戰(zhàn)結(jié)束以后，公民醫(yī)療保障權(quán)開始了新的發(fā)展時期，《經(jīng)濟、社會和文化權(quán)利國際公約》等一系列國際公約的出臺，進(jìn)一步豐富了醫(yī)療保障權(quán)的內(nèi)涵，同時，世界各國不斷完善自身醫(yī)療保障制度，2012年的奧巴馬醫(yī)療改革法案即是其中之一。 醫(yī)療保障權(quán)是現(xiàn)代社會基本的、獨立的人權(quán)，是保障人類生存和發(fā)展的需要，目的在于防范生存風(fēng)險，使公民有尊嚴(yán)地生存下去并獲得發(fā)展；醫(yī)療保障權(quán)同時體現(xiàn)了道德的要求，蘊含了對人性的深刻關(guān)懷，是現(xiàn)代法律制度中人文精神的生動體現(xiàn)。醫(yī)療保障權(quán)還是現(xiàn)代社會的公民基本權(quán)利，對于維護人的尊嚴(yán)和價值必不可少。醫(yī)療保障權(quán)是指公民因疾病或其他自然事件及突發(fā)事件造成身體和健康損害時獲得醫(yī)療服務(wù)或?qū)ζ浒l(fā)生的醫(yī)療費用損失和其他損失獲得經(jīng)濟補償或救濟的權(quán)利。 我國自建國以來，醫(yī)療保障制度經(jīng)過不斷發(fā)展，逐步形成了城鎮(zhèn)職工基本醫(yī)療保障制度、城鎮(zhèn)居民基本醫(yī)療保障制度、新型農(nóng)村合作醫(yī)療保障制度和城鄉(xiāng)醫(yī)療救助保障制度的綜合發(fā)展格局。但公民醫(yī)療保障權(quán)的發(fā)展仍不完善，不同地區(qū)、不同行業(yè)的公民醫(yī)療保障權(quán)仍然存在不平等現(xiàn)象，影響社會公平。為此，國家應(yīng)當(dāng)積極履行醫(yī)療保障義務(wù)。針對公民的消極自由和積極自由，國家應(yīng)當(dāng)承擔(dān)消極層面和積極層面的義務(wù)。誠如艾德所言，國家之于經(jīng)濟、社會和文化方面的權(quán)利負(fù)有三個層面的義務(wù)，，即尊重、保障和實現(xiàn)的義務(wù)，義務(wù)的三分法在《經(jīng)濟、社會和文化權(quán)利國際公約》中得以體現(xiàn)。醫(yī)療保障權(quán)作為經(jīng)濟、社會和文化權(quán)利的重要內(nèi)容，同樣要求國家履行三個層面的義務(wù)。消極層面的義務(wù)即為國家的尊重義務(wù)，每一個公民都有其特殊性，據(jù)此選擇醫(yī)療保障服務(wù)的層次也不同，國家應(yīng)當(dāng)尊重公民的自由選擇權(quán)，同時醫(yī)療服務(wù)機構(gòu)在醫(yī)患關(guān)系中應(yīng)當(dāng)尊重公民的隱私權(quán)。積極層面的義務(wù)包括國家的保障和實現(xiàn)義務(wù)。受制于城鄉(xiāng)二元經(jīng)濟結(jié)構(gòu)，我國公民的醫(yī)療保障權(quán)在事實上也存在不平等現(xiàn)象。對此，國家的保障義務(wù)首先要求自身不侵犯公民的醫(yī)療保障權(quán)，其次應(yīng)當(dāng)防止第三方侵害公民的醫(yī)療保障權(quán)，努力消除醫(yī)療保障差距，維護社會公平正義。國家的實現(xiàn)義務(wù)是最高層面的義務(wù)要求，應(yīng)當(dāng)在立法、財政和制度三個方面積極履行義務(wù)，充分體現(xiàn)國家作為義務(wù)主體的地位，創(chuàng)造良好的外部環(huán)境，滿足公民的醫(yī)療保障需求。
[Abstract]:In history, medical security has experienced the evolution from favor to right. Because of the frequent wars in the Middle Ages in Europe, the state was unable to undertake the obligation of medical security. Although there are provisions on medical assistance for medical patients in Elizabeth's Law of Relief of Poverty, citizens do not have the right to medical security in the strict sense. After the development of two industrial revolutions, the capitalist mode of production was established. Starting with the German Enterprise Workers Disease Insurance Act of 1883, the citizens' right to medical security was clearly put forward in the form of law for the first time. The state is required to fulfill its obligations to guarantee the right of citizens to medical security; After the end of World War II, the citizens' right to medical security began a new period of development. The publication of a series of international covenants, such as the International Covenant on Economic, Social and Cultural Rights, further enriched the connotation of the right to medical security, and at the same time, The 2012 Obamacare Reform Act is one of the countries around the world that are improving their health care systems. The right to medical security is a basic and independent human right in modern society. It is the need to ensure the survival and development of human beings. The purpose of the right is to guard against the risks of survival and to enable citizens to survive and develop in dignity. At the same time, the right of medical security embodies the requirements of morality and the profound concern for human nature. It is a vivid embodiment of the humanistic spirit in the modern legal system. The right to medical security is still the basic right of modern society, which is indispensable to the maintenance of human dignity and value. The right to medical security refers to the right of citizens to receive medical services or to obtain economic compensation or relief for the loss of medical expenses and other losses caused by illness or other natural events and emergencies. Since the founding of the people's Republic of China, the medical security system has gradually formed the basic medical security system for urban workers and the basic medical security system for urban residents. New rural cooperative medical security system and urban and rural medical assistance security system comprehensive development pattern. However, the development of citizens' right to medical security is still imperfect. To this end, the state should actively fulfill its medical security obligations. In view of the negative and positive freedoms of citizens, the state should undertake the negative and positive levels of obligations. As Eddard said, the State has three levels of obligations to economic, social and cultural rights, namely, the obligation to respect, safeguard and fulfil, and the triple play of obligations is embodied in the International Covenant on Economic, Social and Cultural Rights. As an important part of economic, social and cultural rights, the right to medical security also requires the state to fulfill its obligations at three levels. The negative level of the obligation is the obligation of the state to respect, every citizen has its own particularity, according to the choice of different levels of health care services, the state should respect the free choice of citizens, At the same time, medical service institutions should respect citizens' right to privacy in doctor-patient relations. Positive level of obligations include the State's safeguards and obligations to fulfil. Restricted by the dual economic structure of urban and rural areas, the right of medical security of Chinese citizens also exists inequality in fact. In view of this, the state's duty of security requires, first, not to infringe on citizens' right to medical security; secondly, to prevent third parties from encroaching on citizens' right to medical security, to make efforts to eliminate the gap of medical security, and to safeguard social fairness and justice. The realization obligation of the state is the highest level obligation. It should fulfill the obligation actively in the three aspects of legislation, finance and system, fully reflect the status of the state as the subject of the obligation, and create a good external environment. To meet the medical security needs of citizens.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D922.16
本文編號：2392650
[Abstract]:In history, medical security has experienced the evolution from favor to right. Because of the frequent wars in the Middle Ages in Europe, the state was unable to undertake the obligation of medical security. Although there are provisions on medical assistance for medical patients in Elizabeth's Law of Relief of Poverty, citizens do not have the right to medical security in the strict sense. After the development of two industrial revolutions, the capitalist mode of production was established. Starting with the German Enterprise Workers Disease Insurance Act of 1883, the citizens' right to medical security was clearly put forward in the form of law for the first time. The state is required to fulfill its obligations to guarantee the right of citizens to medical security; After the end of World War II, the citizens' right to medical security began a new period of development. The publication of a series of international covenants, such as the International Covenant on Economic, Social and Cultural Rights, further enriched the connotation of the right to medical security, and at the same time, The 2012 Obamacare Reform Act is one of the countries around the world that are improving their health care systems. The right to medical security is a basic and independent human right in modern society. It is the need to ensure the survival and development of human beings. The purpose of the right is to guard against the risks of survival and to enable citizens to survive and develop in dignity. At the same time, the right of medical security embodies the requirements of morality and the profound concern for human nature. It is a vivid embodiment of the humanistic spirit in the modern legal system. The right to medical security is still the basic right of modern society, which is indispensable to the maintenance of human dignity and value. The right to medical security refers to the right of citizens to receive medical services or to obtain economic compensation or relief for the loss of medical expenses and other losses caused by illness or other natural events and emergencies. Since the founding of the people's Republic of China, the medical security system has gradually formed the basic medical security system for urban workers and the basic medical security system for urban residents. New rural cooperative medical security system and urban and rural medical assistance security system comprehensive development pattern. However, the development of citizens' right to medical security is still imperfect. To this end, the state should actively fulfill its medical security obligations. In view of the negative and positive freedoms of citizens, the state should undertake the negative and positive levels of obligations. As Eddard said, the State has three levels of obligations to economic, social and cultural rights, namely, the obligation to respect, safeguard and fulfil, and the triple play of obligations is embodied in the International Covenant on Economic, Social and Cultural Rights. As an important part of economic, social and cultural rights, the right to medical security also requires the state to fulfill its obligations at three levels. The negative level of the obligation is the obligation of the state to respect, every citizen has its own particularity, according to the choice of different levels of health care services, the state should respect the free choice of citizens, At the same time, medical service institutions should respect citizens' right to privacy in doctor-patient relations. Positive level of obligations include the State's safeguards and obligations to fulfil. Restricted by the dual economic structure of urban and rural areas, the right of medical security of Chinese citizens also exists inequality in fact. In view of this, the state's duty of security requires, first, not to infringe on citizens' right to medical security; secondly, to prevent third parties from encroaching on citizens' right to medical security, to make efforts to eliminate the gap of medical security, and to safeguard social fairness and justice. The realization obligation of the state is the highest level obligation. It should fulfill the obligation actively in the three aspects of legislation, finance and system, fully reflect the status of the state as the subject of the obligation, and create a good external environment. To meet the medical security needs of citizens.
【學(xué)位授予單位】：西南政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2014
【分類號】：D922.16
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