All-staff nucleic acid testing or all-staff nucleic acid testing in designated key industries is announced by the government, and general notices all indicate that according to the decision of provincial and municipal epidemic prevention and control headquarters (which should be a specialized agency authorized by the government), all-staff nucleic acid testing will be arranged in a certain month (or to a certain month), and all residents are required to keep quiet at the specified time and go to the designated place for nucleic acid testing. In order to ensure a wide range of nucleic acid testing for all employees, it is generally stipulated that citizens who have not undergone nucleic acid testing during this period will be dealt with. According to public news reports, regulations vary from place to place. Let's take a look at some published contents.
Before 9: 00 am on May 3, 2022, the epidemic prevention and control headquarters of COVID-19 City, Siping City, Jilin Province issued the Notice on Carrying out Nucleic Acid Testing for Urban Residents on June 2.
Article 1 stipulates that those who fail to participate in this round of nucleic acid testing without reason or for more than two times shall be administratively detained according to law 10, fined 500 yuan, listed in the list of untrustworthy persons and publicly exposed in the media.
Employees of shops along the street who do not participate in this round of nucleic acid testing without reason will be shut down in addition to the above measures.
At about 9 pm that day, the unit issued a new Notice on Carrying out Nucleic Acid Testing for Urban Residents on June 2, which cancelled the above two items and stipulated that those who did not participate in this round of nucleic acid testing should be given yellow code auspicious code. After taking the initiative to make up the inspection, cancel the yellow code in time. Other terms have also been changed.
The notice issued by Tianjin Epidemic Prevention and Control Headquarters is generally: for those who have not participated in nucleic acid testing within the specified time, the "health code" will be adjusted to "yellow code". After the nucleic acid test is completed and the result is negative, it will turn into a "green code".
In March, 2022, Yucheng City Public Security Bureau of Dezhou made the provision of Article 50, paragraph 1 (1) of the Law on Public Security Administration Punishment for two citizens who refused to do nucleic acid testing: in case of emergency, they refused to carry out the decisions and orders issued by the people's government according to law. Two citizens were punished by administrative detention. Weibo released by Yucheng Public Security Bureau.
On June 6, 2022, Dongli District, Tianjin gave public security punishment to a case of not participating in nucleic acid testing in the whole district for no reason. (The news did not report the type and legal basis of punishment).
At present, in places where nucleic acids are all normalized, citizens who have not been tested for nucleic acids are punished by compulsory measures such as fines and detention. In response, National Health Commission responded at the press conference on June 9, calling on the masses to abide by the provisions and requirements of epidemic prevention and control in accordance with the law and actively cooperate with the development of nucleic acid testing. For the regions, units and individuals that take illegal compulsory measures, the joint prevention and control mechanism of the State Council will require the relevant places to rectify and correct in time.
Judging from the above release, it is not mandatory to call on the masses to actively cooperate. Therefore, an administrative act that is mandatory without nucleic acid is suspected of breaking the law.
After the emergence of SARS in 2003, the government used administrative means to deal with the crisis, lacking legal basis, such as isolation measures, which disrupted the legal order. Therefore, we began to legislate. In May 2003, the Emergency Regulations on Public Health Emergencies (administrative regulations) was promulgated and revised on 20 1 1. Article 51 In the emergency handling of emergencies, if the relevant units and individuals fail to perform their reporting duties in accordance with the provisions of these Regulations, conceal, delay reporting or make false reports, hinder the emergency handling staff from performing their duties, refuse the professional and technical institutions designated by the health administrative department of the State Council or other relevant departments to enter the scene of emergencies, or fail to cooperate with the investigation, sampling, technical analysis and inspection, the responsible persons concerned shall be given administrative sanctions or disciplinary sanctions according to law; Violation of the Regulations of the People's Republic of China on Administrative Penalties for Public Security, which constitutes a violation of public security administration, shall be punished by the public security organs according to law; If a crime is constituted, criminal responsibility shall be investigated according to law.
In 2007, the Emergency Response Law was promulgated. But so far, there is no emergency law in China.
Among them, Article 69 of the Emergency Response Law has a particularly serious emergency, which poses a great threat to people's life and property safety, national security, public security, environmental security or social order. If the emergency measures stipulated in this Law and other relevant laws, regulations and rules cannot eliminate or effectively control or mitigate its serious social harm, and it is necessary to enter a state of emergency, it shall be decided by the NPC Standing Committee or the State Council in accordance with the authority and procedures stipulated in the Constitution and other relevant laws.
Extraordinary measures taken in a state of emergency shall be implemented in accordance with relevant laws or other provisions of the NPC Standing Committee.
Law on Public Security Administration Punishment (promulgated in August 2005, revised on 20 12), in which Item (1) of Paragraph 1 of Article 50 reads: Anyone who commits one of the following acts shall be given a warning or fined not more than 200 yuan; If the circumstances are serious, they shall be detained for more than five days and less than ten days, and may be fined up to five hundred yuan:
(a) refusing to implement the decisions and orders issued by the people's government in an emergency;
According to Article 67 (XXI) of the Constitution, the National People's Congress Standing Committee (NPCSC) has the right to decide that the whole country or individual provinces, autonomous regions and municipalities directly under the Central Government shall enter a state of emergency.
Article 80 of the Constitution stipulates that the President declares a state of emergency according to the decision of the NPC Standing Committee.
Paragraph 16 of Article 89 of the Constitution: the State Council has the right to decide that some areas within provinces, autonomous regions and municipalities directly under the Central Government shall enter a state of emergency according to the law.
Then, please tell me, which province, autonomous region, municipality directly under the Central Government or prefecture-level city in China was declared a state of emergency according to law? . So will the public security organs punish according to this article?
As a lawyer, I can't judge whether it is legal for citizens to be punished by public security organs for not conducting nucleic acid testing. Citizens may file an administrative reconsideration or an administrative lawsuit against the administrative punishment of not doing nucleic acid testing, and the court shall make a judgment according to law. If the people can feel fairness and justice in every case (first of all, their own cases), then their faith in the rule of law can be established.
Finally, I hope to have a good rule of law and run the country according to law. The judgment of epidemic situation should be based on scientific investigation, and the national prevention and control measures should be decided democratically. Improper measures should be corrected. We should be responsible for the wrong decisions and consequences.