Liu Zhenxing

According to China's relevant regulations on vaccines, vaccines in our country are divided into immunization planning vaccines and non-immunization planning vaccines. The public vaccinates according to the national health department's immunization planning and their own needs. During the vaccination process, due to The unavoidable damage to the vaccinators caused by the characteristics of the vaccine without any faults is called the vaccination anomalous reaction infringement damage; the avoidable damage to the vaccinators due to vaccine manufacturing, transportation, storage, or vaccination errors is called Infringement damage for non-vaccination abnormal reactions. In recent years, in the event of vaccination infringement, the issue of accountability of those responsible has attracted the attention of the general public. Who should be the main responsible party in the event of vaccination infringement? This problem of responsible subjects of vaccination infringement is not only the concern of the general public, but also the inevitable requirement of theoretical research on vaccination infringement.

By analyzing the existing vaccination infringement incidents, it can be known that in the event of infringement of the vaccination response, the parties involved in vaccination have no fault, and the damage is caused by the inherent characteristics of the vaccine itself. According to the medical research report, the vaccine is a disease virus that is prevented, processed by medical technology and then injected into the human body, and finally forms antibodies to prevent related diseases. It can be seen that the vaccine we inoculate is actually a "virus". It is impossible for the human body to be 100% safe after all, there must be a possibility of jeopardizing the safety of the human body, but this possibility is very low. This phenomenon is called "abnormal reaction", so we can know that each kind of The vaccine will inevitably have an abnormal response, but it is difficult to determine which recipient will have an abnormal response in the end. According to the research of related scholars, Japan calls this phenomenon "Demon Lottery"[3]. Now that the risks of vaccination are bound to exist, why must vaccination be carried out? This is due to the necessary considerations of human health and social public health security.

Studying the specific provisions of vaccine-related laws and regulations, we can see that China's current vaccines are divided into two types of vaccines and non-immunization vaccines, also known as first-class vaccines and second-class vaccines. The first type of vaccine is the immunization planning vaccine. It is a type of vaccine that the national health and safety department plans according to the necessity of public safety and requires the general public to inoculate. Such vaccination is not only beneficial to the health of the recipients, but also to the public health of the general public. The government's compulsory administration of this type of vaccine is particularly obvious. A type of vaccine is a compulsory administrative act of the government. Infringement damage caused by a type of vaccine, whether it is abnormal reaction damage or non-abnormal reaction damage, can be said to be caused by the government's compulsory administrative action. In this incident of damage, the government or the state became the The main bearer of liability for damage. According to the theory of tort law, who caused the infringement results, who is the infringer, and who is responsible for the infringement. In the course of a class of vaccination, the role of the government is relatively obvious, and the government should be the subject of responsibility.

The infringement damage caused by the vaccination of immunization plan has abnormal response tort damage and non-abnormal response tort damage. The abnormal response tort damage exists for every type of vaccine and is unavoidable. In this type of infringement damage, the relevant vaccination subject is not at fault, and at the same time, the vaccination of immunization planning vaccine is very compulsory by the government. Therefore, after the damage results, the recipient certainly hopes that the government can give compensation. All inoculation-related subjects involved in abnormal response to infringement damage are not at fault for the occurrence of the final damage result. If they are taken as the responsible body, there is no theoretical basis or unreasonable. Vaccination of the recipient is an act that obeys the national immunization plan and is a passive behavior under the government's compulsory behavior. The infringement damage of the recipient cannot be attributed to the vaccinated parties. Therefore, this type of vaccination damage can only be attributed to the government In the case of vaccination, the government shall become the responsible subject of such vaccination damage and shall be liable for compensation. It is important to point out here that the government should pay compensation to those who have suffered from vaccination, and should bear compensation liability, which is compensation for the damage suffered by the audience, not compensation. The damage caused to patients by the abnormal response tort damage is caused by the audience for public safety in response to the requirements of the immunization plan. The audience complies with the government's requirements to damage their legitimate rights and interests for the benefit of more people. It is noble to act in a small way for the benefit of the big ones, and it is reasonable to receive compensation equal to their own losses, and the compensation is difficult to make up for the damaged person, whether spiritually or materially. In short, it is necessary for the country to take full responsibility for the abnormal response to immunization against immunization programmes.

In the case of non-abnormal reaction infringement caused by immunization planning vaccination, one or more parties are at fault during the vaccination process, that is, the non-abnormal response to immunization planning vaccine vaccination has the existence of the infringing subject, and the injured person can request infringement Actors assume tort liability to compensate for the damage they have suffered. In this case, is it necessary for the government to take responsibility for the previous mandatory immunization program? This article considers it necessary. If there is no government compulsory immunization plan, the recipient will not be vaccinated and will not damage their rights and interests due to the wrongdoing of the relevant unit. The damage that vaccines cause to recipients is immeasurable, and government immunization programs are an important cause of this damage. Therefore, it is necessary for the government to compensate the audience for the non-abnormal response to the vaccine. It is particularly pointed out that for such vaccination damages, the State's main liability for compensation cannot relieve the vaccination-related subjects of their liability and related administrative penalties for their own faults.

In addition to immunization planning vaccines in China, there are also non-immunization planning vaccines, which are also called second-class vaccines. This type of vaccine is no longer included in the national immunization plan. The national health department does not force the general public to inoculate. Voluntary vaccination. There is no government compulsory government action for vaccination of type II vaccines, but voluntary vaccination by the public. To some extent, it can be said that the people voluntarily bear the risk of abnormal vaccine reactions while voluntarily receiving type II vaccines. Take the risk. After the abnormal reaction occurs, can the recipient no longer seek compensation or compensation? This article argues that there is no subject of compensation for the infringement of type II vaccines, but the state or the government should be the subject of compensation. Vaccines are medical products for preventing diseases. Vaccination is of great value to national health and public health safety. Although the infectiousness and incurability of diseases prevented by type II vaccines are not as high as those of type I vaccines, vaccination is The improvement of national fitness and public health safety is also very meaningful. The state should bear appropriate compensation responsibilities for abnormal immunization responses to non-immunized vaccines, and the state does need to be the subject of compensation.

The non-abnormal reaction tort damage caused by the recipient's vaccination with non-immune vaccines is the subject of the tort. The tort subject bears the corresponding compensation or compensation responsibility according to the degree of his own fault. The state has no fault in this type of tort damage and does not bear Liability. In other words, the state is not the responsible party for non-immunity infringement of non-immunized vaccine vaccination.

In summary, it is necessary for the country to be the responsible body for the damage caused by vaccination infringement, but the responsibility of different countries varies according to the type of vaccine and the type of damage.

References

[1] [Japan] Yu Heke. National Compensation Law [M]. Xiao Jun, Translated. Beijing: China University of Political Science and Law Press, 2014: 5.

[2] [Japan] Yoshimura Ryoichi. Japanese Tort Law [M]. Zhang Ting, Translated. Beijing: Renmin University of China Press, 2013.

[3] Du Yifang. Compensation and compensation of "evil lottery" — state responsibility in Japanese vaccination damage [J]. Jurist, 2011 (01): 162.

[4] Nie Shuaijun. National responsibility research on personal injury caused by vaccination [J]. Medicine and Law, 2016 (3) 19-23.

[5] Zhao Min, Yue Yuanlei, Zhang Zilong. Thinking about the classification of medical damage liability of the second-class vaccines [J]. Medicine and Philosoph.