How to further improve China's emergency management system
China's emergency management system is adapted to the basic national conditions of the primary stage of socialism. Although China has established an effective system in emergency response, social mobilization, recovery and reconstruction, we should also be soberly aware that the historical stage of China's social development determines that the level of emergency management system construction is still in the primary stage. To improve and mature the emergency management system in China, we must study and deal with the following problems.
First, the relationship between practical exploration and theoretical guidance. After the national emergency management system is basically formed, we must study the relationship between the system and the conditions of the times, the relationship between the system and the allocation of laws and regulations, and the relationship between the system and the particularity of our country. It is necessary to strengthen the study of internal harmony of institutional systems, prevent disharmony between systems, and improve the overall quality of institutional systems. It is necessary to deepen the understanding of legislative theory and lead the system to improve.
Second, the relationship between adhering to China's characteristics and learning from western systems. It is very important to integrate and coordinate with our existing system when learning from foreign successful systems. There are traces of drawing lessons from foreign emergency systems in China's existing emergency management system. In fact, in addition to the general recognition of the direction of the rule of law, we should also adapt to China's national conditions when learning from relevant foreign systems, so as to avoid the situation of "orange growing and orange changing" after introduction and evolution. Due to the different political systems in different countries, if the western system is simply transplanted, there will inevitably be a phenomenon of "orange in the south and orange in the north"; The specific rules at the operational level do not need to be "transplanted" with other systems, and it is often not easy to go out of shape.
Third, the relationship between the central and local governments. With the development of society, the relationship between the central and local governments has taken on new features, and local people's congresses and governments seek local autonomy through laws and regulations. In fact, many local legislations are often innovative attempts to break through the central laws and conform to local realities, so they are reasonable. How to observe this conflict of legal rank? Positive attitude evaluation will be considered as a "benign" conflict, and then it may become a pilot experiment of national legislation; Negative mentality will be considered as a "bad" conflict, and breaking through the existing laws will affect the unity of the country's rule of law. In the period of social transformation, the legislative authority of the central and local governments must make law an important means to adjust the relationship between governments, so as to flexibly use local legislative power in combination with local economic and social development after the scope of the central legislative authority is determined.
Second, emergency management is an important responsibility of the state and the government.
In a country ruled by law, if there is no effective disaster response law, it is difficult to provide disaster protection and incident handling methods when encountering sudden disasters and incidents. Some people think that "emergency management is not restricted by law and needs to be implemented in an emergency", which is incorrect. In fact, the power and activities of the government in extreme war or emergency are also stipulated in the Constitution, National Defense Mobilization Law and Martial Law.
(1) Mobilization and martial law in a state of war
The Constitution stipulates that the National People's Congress has the right to "decide on issues of war and peace". When the National People's Congress is not in session, the NPC Standing Committee has the right to declare a state of war if the country suffers from armed aggression or must fulfill international treaties to prevent aggression. Decide on national mobilization or local mobilization; To decide that the whole country or individual provinces, autonomous regions and municipalities directly under the Central Government shall enter a state of emergency. According to the decisions of the National People's Congress and the NPC Standing Committee, the President declared a state of emergency, declared a state of war and issued a mobilization order.
The State Council has legally decided to enter a state of emergency in some areas of provinces, autonomous regions and municipalities directly under the Central Government.
The Law on National Defense Mobilization stipulates that the state should strengthen the construction of national defense mobilization, establish and improve a national defense mobilization system that is compatible with national defense security needs, coordinated with economic and social development, and connected with emergency mechanisms, so as to enhance national defense mobilization capabilities.
Martial law stipulates that in a state of emergency that seriously endangers national unity, security or social order, the state can decide to impose martial law, and it is not enough to maintain social order and protect people's lives and property without taking extraordinary measures.
(2) The emergency management law except the special law implemented in war and emergency.
In order to effectively deal with all kinds of emergencies and protect the legitimate rights and interests of citizens, enterprises, institutions and social organizations, China has promulgated 35 emergency management laws, 36 administrative regulations, 55 departmental regulations and a large number of local emergency management regulations. In particular, the promulgation and implementation of the Emergency Response Law of People's Republic of China (PRC) indicates that the legal system of emergency management in China tends to be complete. The Emergency Response Law of People's Republic of China (PRC) clarifies the concept and classification of emergencies, and stipulates that the state should establish an emergency management system with unified leadership, comprehensive coordination, classified management, graded responsibility and territorial management as the main task.
According to the requirements of the Constitution, the state must formulate laws or regulations before taking any action involving citizens' rights, and the government can restrict citizens' basic rights only with authorization, which is the basic concept of modern rule of law. In the face of disasters, the state and the government have the obligation and responsibility to take protective and preventive measures to protect citizens, including providing help to citizens who have suffered disasters.
Of course, it is also in the national interest for the country to carry out disaster protection. Preventing and responding to disasters is closely related to national interests. Disasters will affect social stability and even cause great social unrest. For a country, what makes people lose confidence most is its ability to prevent and respond to disasters. In the face of disasters, the government can unite the whole country as never before because of its proper response, and it will also make the political situation unstable because of its improper response.
Third, the current situation of China's emergency management legal system
The promulgation and implementation of "People's Republic of China (PRC) Emergency Response Law" indicates that the construction of our government's emergency management system has basically achieved standardization and legalization. A relatively complete system has been formed in the fields of natural disasters, safe production, public health and social security.
In view of natural disasters, an institutional system with water law, flood control law, forest law, grassland law and geology and mineral law as the backbone has been formed. In the management of water, soil and mineral resources, systems such as planning, development and utilization, engineering protection, resource allocation and economical utilization, dispute settlement, law enforcement supervision and inspection, and legal responsibility have been established.
On this basis, the State Council has also formulated supporting laws and regulations to make these systems more specific and easy to implement. For example, the Flood Control Regulations stipulate that the chief executives of people's governments at all levels shall be responsible; Implement unified command and be responsible for different departments at different levels; All relevant departments implement the post responsibility system for flood control, and make detailed provisions on flood control organization, flood control preparation, flood control emergency rescue, aftermath, flood control funds, rewards and punishments, etc. In addition, there are Regulations on Safety Management of Reservoir Dams, Interim Measures for Compensation of Flood Storage and Detention Areas, Law on Prevention and Control of Desertification, Regulations on Weather Modification and Regulations on Military Participation in Emergency Rescue and Disaster Relief.
In response to earthquake disasters, the state has enacted the Law on Earthquake Prevention and Disaster Mitigation, which stipulates the systems of earthquake monitoring and prediction, earthquake disaster prevention, earthquake emergency, post-earthquake disaster relief and reconstruction, and legal responsibility. The Supplementary Provisions on Destructive Earthquake Emergency further clarified the emergency organization, emergency plan, impending earthquake emergency, post-earthquake emergency and reward and punishment system. Special control measures can be implemented in disaster areas to meet the emergency needs of severely destructive earthquakes.
In response to accidents and disasters, with the rapid development of the national economy, production safety accidents have also shown a trend of multiple occurrences, which has brought great threats to people's lives and property and seriously affected the healthy development of the economy and society. Therefore, the State Council formulated the Regulations on Reporting, Investigation and Handling of Production Safety Accidents, which stipulated the classification, reporting, investigation and handling, legal liability and other aspects of production safety accidents that caused personal injury or direct economic losses in production and business activities. At the same time, the Regulations on the Safety and Protection of Radioisotopes and Radiation Devices were formulated, which also stipulated the reporting, investigation and handling of environmental pollution accidents, nuclear facilities accidents and national defense scientific research and production accidents respectively. In terms of fire prevention, the state has enacted the Fire Prevention Law, which stipulates fire prevention organization, fire fighting and rescue, supervision and inspection, and legal responsibilities. In addition, there are Construction Law, Regulations for the Implementation of the State Council Mine Safety Law, Special Provisions on the Prevention of Coal Mine Production Safety Accidents and Regulations on Coal Mine Safety Supervision. In particular, in the Measures for Investigating the Administrative Responsibility of Extraordinary Safety Accidents in the State Council, it is stipulated that if the main leaders of local people's governments and the main leaders of relevant government departments have dereliction of duty or have leadership responsibilities, they shall be given administrative sanctions and investigated for criminal responsibility according to law. In addition, there are the State Council's Regulations on Quality Management of Construction Projects, Regulations on Industrial Injury Insurance, Regulations on Labor Security Supervision, Regulations on Safety Production Management of Construction Projects, etc.
In response to public health incidents, the state has enacted the Law on the Prevention and Control of Infectious Diseases, which clarifies that the state implements the policy of putting prevention first, combining prevention and control, classified management, relying on science and relying on the masses, and establishes and improves the disease prevention and control, medical treatment and supervision and management system for the prevention and control of infectious diseases. The State Council has formulated the Emergency Regulations on Major Animal Outbreaks, which stipulates that major animal epidemics shall be managed in accordance with the principle of territoriality, with unified leadership by the government and division of responsibilities by departments, and a responsibility system shall be established step by step, and the systems of emergency preparation, monitoring, reporting and publication, emergency handling and legal responsibility shall be defined. In addition, the State Council has formulated normative documents such as the Implementation Measures of the Law on the Prevention and Control of Infectious Diseases and the Emergency Regulations for Public Health Emergencies.
With regard to food safety, the State has enacted the Food Safety Law, which stipulates the systems of food safety risk monitoring and assessment, food safety standards, food production and operation, food inspection, food import and export, food safety accident handling, supervision and management, and legal liability. In addition, there are laws and regulations such as the Entry-Exit Animal and Plant Quarantine Law, the Animal Epidemic Prevention Law, the Frontier Health and Quarantine Law, the Entry-Exit Animal and Plant Quarantine Law, the the State Council Plant Quarantine Regulations and the Detailed Rules for the Implementation of the Frontier Health and Quarantine Law.
In response to social security incidents, the state has enacted the Law on Assemblies, Processions and Demonstrations, which regulates the activities of expressing demands, protests, support and solidarity in open-air public places or public roads by means of assemblies, processions and sit-ins. In addition, there are laws and regulations such as Law on Regional National Autonomy, Law on People's Police, Prison Law, Law on People's Bank of China, Law on Commercial Banks, Law on Public Security Punishment, Criminal Law, Regulations on Letters and Visits in the State Council, Regulations on Handling Labor Disputes in Enterprises, Regulations on Handling Disputes in Administrative Regions, and Regulations on Management of Commercial Performances.
The basic emergency management system determined by these laws and regulations, the emergency management regulations formulated by the central government departments, and the relevant government emergency management regulations formulated by provinces, municipalities directly under the central government, autonomous regions and larger cities constitute the national emergency management system.
Fourth, further promote the improvement of China's emergency management system
(A) the characteristics of emergency management system in China
In the long-term emergency management practice, China has gradually formed an emergency management system under the unified leadership of the State Council to deal with all kinds of public emergencies in different departments and categories. These systems have the following characteristics:
1. Unified leadership and division of responsibilities.
The highest institution of emergency management in China is the State Council, and the State Council leads the prevention and handling of all kinds of emergencies. There is an emergency management office under the General Office of the State Council, which is responsible for emergency response on duty, information collection and comprehensive coordination. Conventional emergency agencies are located in counterpart departments, and temporary emergency management agencies are set up to uniformly command and coordinate the emergency work of various departments and regions.
2. Hierarchical management and compartmentalization
According to the scale and scope of emergencies, classified management is implemented. For emergencies mainly handled by local authorities, all departments in the State Council should give guidance, coordination and help, and implement comprehensive management.
3. Departmental emergency response system
The departments responsible for direct handling of emergencies in the State Council have corresponding emergency command institutions, information and communication systems, disaster prevention facilities and equipment and emergency rescue teams, and established monitoring and forecasting systems, organization and command systems and emergency rescue systems.
(B) the lack of emergency management in China.
In the practice of dealing with emergencies, governments at all levels give full play to organizational functions, highlighting the rapid improvement of government emergency management level. But there are also some shortcomings. The specific performance is as follows:
1. The division of functions is not clear enough.
First of all, the division of powers and responsibilities of emergency management is not clear enough, and problems such as difficulty in coordination between departments and inadequate coordination of actions often appear in practice; Secondly, the responsibility and authorization of local localization management are insufficient, which makes emergency implementation difficult.
2. The comprehensive risk assessment mechanism is weak
The department-based monitoring system and risk assessment are relatively strong, but due to the lack of comprehensive risk assessment and trend prediction, the lack of scientific risk assessment indicators, the risk assessment index system has not been formed.
3. The information communication mechanism between the government and departments is not working well.
At present, there are still some unclear and irregular problems in the standards, procedures, time limits and responsibilities of emergency information reporting in China. Information systems are separated from each other and lack the interconnection and sharing of information resources. Comprehensive information analysis and comprehensive information platform construction need to be strengthened.
4. Social participation is not institutionalized.
There is no systematic law on emergency education, training, drills, fund raising for disaster relief and social volunteers' participation in emergency rescue in China, which is not conducive to practical operation.
(3) Suggestions on improving the emergency management system
In recent years, China's emergency management has rapidly changed from the traditional response to accidents in a single industry, specialty and field and to common events in the region to modern cross-industry and specialty emergency response and disposal. The main characteristics of traditional emergency management are that the complexity of the events faced is relatively low, the technical means and management strategies needed for emergency are relatively clear, and people's cognitive angle is relatively single. The main characteristics of modern emergency management are that most of the emergencies handled are unconventional and complex events, and the predictability and predictability of events are very weak, which is almost impossible to pre-control; Technology and management have been fully developed, making emergency response faster and more effective. Therefore, it is necessary to constantly improve the government emergency management system by making or amending laws in time.
The general idea of perfecting the legal system of emergency management in China should be: taking the relevant provisions of the Constitution as the commander-in-chief, emphasizing that efficient emergency response is the legal responsibility of the government in the process of legislation and law enforcement, summing up the experience since the implementation of the Emergency Response Law, responding to the realistic requirements of national emergency management, amending the Emergency Response Law and related laws and regulations, and determining the legislative plan and annual plan linked to the Emergency Response Law. Popularize the provincial legislative experience of emergency system construction, and promote the ministries and local governments in the State Council to standardize and refine the government's emergency management behavior through rules and regulations, so that the national emergency management system can better adapt to the rapid development of social politics, economy and culture and protect people's rights.
1. Improve the organizational construction of emergency institutions.
First, further strengthen the construction of emergency management leading institutions, mobilize various resources of the party, government, army and society more effectively, be responsible for the overall coordination of disaster response within their respective administrative areas, and eliminate the fetters brought by "compartmentalization" to disaster response.
The second is to strengthen the construction of emergency management offices of governments at all levels. Further strengthen the functions of "emergency management offices" of governments at all levels, and assist the government to comprehensively strengthen the unified leadership, command and coordination of emergency management.
The third is to shift the focus of emergency management. The emergency itself is uncertain and sudden. In order to prevent the emergency disposal from delaying the timely disposal of fighter planes, which will lead to the escalation of incidents and increase the cost and risk of disposal, it is necessary to further strengthen the principle of territorial management and graded responsibility, so that local governments can effectively take responsibility and carry out emergency disposal at the first time, and strive to minimize the losses and impacts of emergencies.
2. Innovative government emergency management system
The first is the connection between emergency plan management innovation and administrative contract. In the future emergency management, the administrative contract system will be created by enacting new laws. The government and non-governmental organizations will sign administrative contracts to stipulate the rights and obligations of both parties and the division of labor in disaster response, and the contract text will be included in the emergency plan.
Secondly, when making and amending laws, administrative procedures and compulsory methods in emergencies should be added. Amend the Administrative Procedure Law and the Administrative Compulsory Law in time, increase the ways for the government to exercise compulsory power in emergencies, and stipulate administrative procedures different from normal situations.
3. Formulate laws, regulations and norms to supplement the areas where laws have not been adjusted.
The first is to strengthen the incentive mechanism of social participation in emergency rescue. The Emergency Response Law of People's Republic of China (PRC) stipulates that citizens, legal persons and other organizations have the obligation to participate in emergency response. Villagers' committees and other organizations in the place where emergencies occur shall organize the masses to carry out self-help and mutual rescue, and mobilize communities, non-governmental organizations and other forces to play a role in emergency.
The second is to establish an emergency requisition compensation system. The compensation policy, capital investment policy, industrial injury insurance policy, and resettlement policy for commanders and fighters should be established for full-time rescue teams to serve and participate in social rescue.
The third is to establish a catastrophe insurance system. Draw lessons from the experience of catastrophe insurance system in western countries, seriously investigate and study the actual situation in China, actively coordinate various departments, improve the legal environment of catastrophe insurance, give policy support from the state, promote the catastrophe insurance pilot in a timely manner, formulate catastrophe insurance laws and regulations on this basis, and establish a catastrophe insurance system suitable for China's national conditions.