What laws do abuse of health codes violate?

Wen | Xiong Zhi Liu Mengdi

Recently, the Zhengzhou Discipline Inspection Commission issued the results of the "Red Code Incident" survey. The truth of this hot Internet hot event has gradually become clear, and the relevant cadres involved have been punished.

Under the current situation of the epidemic, as we all know, in order to facilitate management and identification, health codes in various places are generally divided into red health code (hereinafter referred to as red code), yellow health code (hereinafter referred to as yellow code) and green health code (hereinafter referred to as green code) Essence Among them, the red code indicates that it is necessary to isolate or centralized medical observation in designated medical institutions, and the territorial epidemic prevention and control institutions need to be strictly managed. The yellow code indicates that it needs to be detected, nucleic acid testing, and conducting home medical observation or health monitoring; green code indicates that no abnormalities can be seen and can be used normally. In other words, the green code represents a pass, and the red code has become a ban. This is well known to the whole society.

As an important epidemic prevention tool, the color of the health code cannot be abused at will, otherwise, the effectiveness of social management order and the prevention and control of the epidemic will be subverted.

The author believes that the health code as the manifestation of government epidemic prevention management has been generally recognized by society, as if laws are generally obeyed and executed. The appearance of the red code marks that it has been given a certain ban. During the current epidemic period, the red code is equivalent to restricting a person's freedom of action. Conversely, the green code marks the passage and freedom, which is a special passage issued by the government's epidemic prevention management to the citizens. The reason why the health code is widely recognized and obeyed is not only because of the strong promotion of the government from the bottom down, but also the trust of public power. It can be seen that the appearance of red code is of great significance in the current epidemic situation.

From a legal perspective, in general, only when one person violates the law or is suspected of crime, will it take for compulsory measures to restrict personal freedom and lose the freedom of action. If someone is given a red code for no reason, is this equivalent to putting electronic shackles for him? What is the difference between this move and illegal detention?

Article 238 of the Criminal Law of my country stipulates that if illegally detained others or illegally deprives others of personal freedom in other methods, it will be sentenced to imprisonment, detention, control, or depriving political rights for more than three years. Those who have the plot of beating and insulting are punished.

Although the management of health code during the epidemic period has not yet risen to the legal level due to unified legislation, the red code logo of special groups may actually have violated many laws of the stock.

First of all, without the special labeling of personal information, the basic information of the rights protection group cannot be identified. It can be seen that some people have leaked the information of others illegally. This leak, once the public instrument is privately used, deliberately marked the red code for a special group, is already suspected of illegal. Article 34 of my country's Personal Information Protection Law stipulates that in order to perform legal responsibilities to handle personal information, the state organs shall be carried out in accordance with the authority and procedures stipulated in laws and administrative regulations, and shall not exceed the scope and limit that must be fulfilled in the performance of legal duties. The "Notice on Doing a Better Information Protection of Personal Information to Support Joint Prevention and Control Work" issued in February 2020 also clearly stipulates that personal information for epidemic prevention and control, disease prevention and treatment shall not be used for other purposes.

Not only that, the abuse of epidemic prevention, deliberately marked others as a red code, but also violates the relevant provisions of the Infectious Disease Prevention Law. Article 12 of my country's Infectious Disease Prevention Law stipulates that the epidemic prevention department shall not be leaked from the relevant information and information involving personal privacy involving personal privacy. Health administrative departments and other relevant departments, disease prevention and control institutions and medical institutions who violate the laws and preventive measures of administrative management or prevention and control measures in violation of the law shall violate the legitimate rights and interests of the unit and individuals, and the relevant units and individuals may apply for administrative reconsideration or filed a lawsuit in accordance with the law.

At present, the rules of the health code of the health code are mainly formulated by the provincial administrative units, and in different provinces, the competent units are different. For example, the competent unit of "Health Treasure" in Beijing is the Beijing Municipal Economic and Information Management Bureau; the competent unit of "Sukang Code" in Jiangsu Province is Jiangsu Province's Disease Control and Control Center; The competent unit of Liaoning Province's "Liaoning Tong" is the Liaoning Provincial Business Environment Construction Bureau and the Provincial Information Center. Even in the same province, the department responsible for the code is not uniform.

Article 397, paragraph 1 of the Criminal Law of my country, stipulates: "Staff staff of state organs abuse their powers or neglect their duties, causing major losses for public property, national and people's interests, they will be imprisoned or detained for less than three years; the circumstances are particularly serious. For more than three years and seven years. If there are other regulations in this law, in accordance with regulations. "

The author believes that the law gives citizens' personal privacy that cannot be violated, and at the same time requires citizens to transfer part of the rights for social management. Obviously, the personal information required for the health code to build code can only be used for epidemic prevention and control, and no unit or individual cannot leak and abuse arbitrarily. The protection of the health code information of the government's functional departments is the protection of the basic rights of each citizen.

After the outbreak of the new coronary pneumonia, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice announced the "Opinions on the punishment of crimes against the prevention and control of pneumonia in infection with pneumonia in accordance with the law".The staff of state organs who have responsibilities such as organizational, coordination, command, disaster investigation, control, medical treatment, information transfer, transportation, transportation, and material protection, etc., abuse their powers or neglect their duties, causing major losses to public property, state and people's interests.In accordance with the relevant provisions of the Criminal Law, the crime of abuse of power or neglecting the crime of duty is convicted.The occurrence of this incident sounded the alarm for us again.Only when the people are centered and regulate the use of public power at all times can we establish an authoritative and credible government credibility.

(Author unit: Beijing Beidou Dingming Law Firm)

(This article was published in "China Economic Weekly", No. 12, 2022)

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