Source:Network Time:2008-03-16,11:48:58 Author:Unknown
[Abstract]
Criminals serving a prison sentence should be given timely treatment of illnesses, reflecting the socialist system under the execution of the system of the superiority of the criminal's right to health, which is not only a concrete embodiment of the criminal's right to health, but also in reason and morality, the law also has a clear provision, but in individual cases of injury and disease treatment process is also often given timely treatment, reflecting the socialist system under the execution system of the superiority of the criminal's right to health. The concrete embodiment of the situation, but also in the moral sense, in the law also has express provisions, but in individual cases of injury and disease treatment process is often encountered with what kind of medicine, use what kind of equipment, live in what conditions of the hospital problem. The same kind of disease using different drugs, input equipment is not the same, the hospital level is not the same, the price and cost is not the same, or even a big difference. There are no specific, standardized provisions on this issue in existing policies and systems, and the Prisons Act promulgated by the State in December 1994 contains no detailed provisions on how to provide medical treatment, leading to many gaps in the specific law enforcement activities of prisons. For example, for criminals with serious illnesses, in the process of treatment, how to count on timely treatment, the road to treatment in the end how wide, how far, this is a recurring problem encountered in prisons, the families of criminals also put forward too many requirements for prisons, serious criminals' condition meets the conditions of medical parole, criminals' families in order to let the prison out of pocket to see the disease and deliberately do not agree to the bail, and in the process of monitoring the prison's treatment of the offender's attitude and behavior In order to prevent prisons from entering the medical parole program, the supervisory authorities also have a tendency to reverse the consequences and look for responsibilities, which is prone to disputes over law enforcement and confusion over reasoning, so that prisons are often faced with a lot of helplessness. Even though criminals can be released on medical parole, many guarantors have no sense of responsibility, do not fulfill their obligations, and do not really play a guaranteed role. Existing laws do not provide for the legal responsibility of the guarantor, and the guarantor's responsibility for faults cannot be pursued, resulting in the guarantor's name without reality, bringing many problems and difficulties to the work of medical parole. It is recommended that the national legislative department or prison management department, in conjunction with the relevant authorities, should make specific, operable and clear provisions on the standards for the treatment of criminals as soon as possible; that the guarantors of criminals released on medical parole should be held legally liable, and that the prisons should exercise the right to investigate and recommend prosecution in this case, i.e., that they should exercise jurisdiction from their prison locations, which would not only provide guidance to the prisons on the standardization of treatment for serious criminals, but also solve the problem of medical parole and the need for a guarantor to be held liable.
[Keywords] prison, seriously ill criminals, treatment, medical parole
Criminals in prison should be given timely treatment of disease, is a specific embodiment of the right to health of the offender, in the case of the moral sense, in the law is also expressly provided. Therefore, in the prison of the whole law enforcement activities, this is also a very serious content. At the same time, in the process of prison law enforcement since the founding of the country, due to the correct implementation of the relevant provisions of the law to save lives and injuries, timely treatment of many criminals' lives and injuries, reflecting the socialist system of execution of the superiority of the system of punishment, but in the case of injuries and illnesses in the process of treatment often encountered with what kind of medicines, what kind of equipment, live in what conditions of hospitals, but only in the era of the planned economy of medicines, equipment, conditions are similar, the conflict is not too prominent, but also in the process of the law, the law is not a serious matter. Conditions are similar, the contradiction is not too prominent, when China's gradual transition from a planned economy to a market economy, the price of drugs, equipment updates, high-tech inputs, the same kind of a disease using different drugs, input equipment is not the same, the level of the hospital is not the same, the price and the cost is not the same, or even a big difference. December 1994 the state promulgated the "Prisons Act" [1] on how to rescue and treatment is also not regulated in detail. As a result, there are no specific methods and standards for prisons in law enforcement activities. This can easily lead to law enforcement disputes and emotional confusion. Such as criminals with serious illnesses, in the process of treatment, how to count the timely treatment, treatment of the road in the end how wide, how far, this is the prison regularly encountered problems, because the policy is not specific, the system is not standardized, resulting in a lot of specific law enforcement gaps, the families of the criminals also put forward too many demands on the prison, the supervisory organs also have the tendency to reverse from the consequences of the responsibility, prisons are often faced with a lot of helplessness, and therefore urgently hope that the relevant standards will be defined at an early date. The prison often faces a lot of helplessness, and therefore urgently hope that the relevant standards will be defined at an early date.
One: what are the standards for the treatment of criminals
"Criminals are criminals of the state, and if they are sick, they should be treated by the state (prisons)". This is a more traditional and common understanding in prisons and inmates. But how high is the standard of treatment given to criminals suffering from serious illnesses in prison? Is there an upper limit? If the prison treatment conditions are limited, the prison will generally be the first offenders will be transferred to the county-level social hospital treatment, and once outside the hospital, the prison is a bit "can not help it", because the medical department in their inability to do anything about it are only issued to the higher level of the hospital transfer certificate will not agree to the lower level of hospitals to pull, and even more will not agree to the prison on this pull back to the prison! The medical department will only issue a certificate of transfer to a higher-level hospital when it is unable to do so, and will not agree to pull the prisoner back to the prison for treatment. Some inmates' families are even more assertive, saying that they will sue the prison if they don't give us (the convicts) proper medical care. When prisons do not have a clear legal basis and protection, they are passive in every way. At any time there is a risk of being held accountable by inmates and supervisory authorities.
For example, our province Xuchang prison offender Wu Moumou (robbery, 4 years in prison, 25 years old), in November 2003 when he was admitted to prison on both lungs cavity type tuberculosis (and then found that the HIV response positive), the prison in accordance with the "criminals on medical parole disease disability scope" [2] and the Yu Prison Supervision (2000) No. 32 document [3] and other regulations in accordance with the law refused to accept the court of the judgment to The prisoner exists on the grounds of social danger, in accordance with the supreme people's court on the implementation of the "Chinese people's *** and the state criminal procedure law" [4] a number of issues in the interpretation of article 354 of the provisions of the decision to reissue the admission and execution of the decision.
After his admission, Wu received treatment at the prison hospital and had been improving for a while. However, on May 25, 2004, the prisoner's condition repeated and aggravated, the prison sent to Xuchang city tuberculosis hospital treatment, June 6 and was transferred to Xuchang city central hospital for treatment, has now repeatedly in the ICU (intensive care) emergency care. Wu had spent about 8,000 yuan before going to the ICU, and spent 1,000-2,000 yuan a day on ICU care. Relatives of criminals are extremely strict and tough in monitoring the treatment behavior in the prison.
If it is an ordinary patient in society, the patient's family can go home if they don't want to be treated; if it is our prison police who are sick, there is a percentage of out-of-pocket expenses to be paid for hospitalization; if it is a citizen who has no medical insurance or is in an economically challenged unit, his medical protection is far from catching up with that of the offender. Patients in society have a lot of feelings about the medical treatment of criminals, which is extremely unbalanced and incomprehensible. Are prisons "welfare homes"? This may not be illegal, but it seems clearly incompatible with social justice and moral standards.
According to the Henan Provincial Prison Administration Yu prison (1999) No. 22 document [5], the provincial industrial prisons, the current standard of medical fees for criminals is 10 yuan per person per month; and is the minimum standard. But even if the standard can be adjusted upward, not allowed to adjust the standard downward, the financial resources must be limited, in order to ensure the normal operation of the prison health care work, so that the vast majority of criminals' medical rights and interests are not infringed on the treatment of criminals suffering from difficult and critical illnesses, or to have a clear limitation of the appropriate. It is our society, the old cadres, the old revolution of the public medical reimbursement also stipulates which is self-financed, which is the public expense, which medical equipment and medical means can not be used, such as the same is to rescue heart disease medicines, cheap a needle may be more than ten dollars can receive the therapeutic effect of expensive, imported a needle can be as high as a few hundred, thousands of dollars, the hospital to choose which kind of medicine can be, but the prison's affordability will not be enough. It will be beyond the capacity of the prison. If our police officers have less than 10 years of service, the proportion of public medical care is only 70%, and the proportion of reimbursement for approved out-of-town drug purchases is reduced by 10%. And according to the Ministry of Health, the Ministry of Finance and the State Bureau of Labor's (1997) Health Planning Document No. 637[6], publicly-funded medical treatment for self-paid medicines is also regulated in detail.
The Department of Justice of Henan Province, the Department of Health in Henan Province to the Justice Lianzhi (1995) No. 17 document [6] issued by the implementation of the issues related to prison health work has "prisons, when necessary, can invite the local city, county (city) hospitals of the medical experts to the prison on the consultation of difficult diseases, the local municipal, county (city) health administration should actively give The local municipal, county (city) health administrative departments shall actively provide coordination and support". This shows that treatment within the prison is the basic principle for the treatment of illnesses of offenders, and that even in the case of critical and difficult illnesses, consultation within the prison should be the basic principle. Prison in the social hospital will be convicts diagnosed and the formation of treatment programs should be admitted to the convicts in prison to implement therapeutic activities. However, recently, a municipal prison in our province in the treatment of a tuberculosis offender in the process, has been in prison, social hospital treatment, but the offender eventually died in prison. After the death of the offender prison leadership, but because of suspected dereliction of duty and was prosecuted for criminal responsibility.
In this regard, we believe that this is an abnormal state of affairs. In the face of prisoners, prisoners and supervisory organs of the double pinch, in the absence of clear provisions of the law, the standard is not specific, standing in a different position, each from the perspective of each interpretation, as a penalty enforcement organs of prisons appear very passive. The situation is now very serious. While prisoners, their families and society have formed a "high-pressure encirclement" of prisons, prisons still lack the self-protection they should have. The extraordinary efforts of society to investigate and deal with human rights violations have left prisons suddenly at a loss as to how to deal with the situation. The incorporation of human rights into the constitution is a step forward in social and political civilization, and a clearer understanding of the state's responsibility to protect its citizens. But medical parole, a legal measure based on humanitarian principles, has been transformed from an "emperor's daughter" into a "woman of the world" who is subjected to arbitrary and selective treatment. In the face of such a situation, the prison authorities as law enforcers are really in an awkward position.
Therefore, in the treatment of serious criminals treatment standards and procedures, there is an urgent need to form a clear regulation or system in the following aspects: 1, under what circumstances need to go to social hospitals for treatment; 2, the highest level and conditions of the hospital. What happens when a hospital or the offender's family suggests transferring to a hospital with better conditions outside the prison if the hospital at the prison site is unable to treat the offender? Is it permissible if the condition requires it or if the offender's relatives can contact a good hospital? Are there restrictions or no restrictions? If not, how is the approval process clarified? 3. Should there be a proportion of treatment costs that the convict pays out of his own pocket, and if the proportion and items that the convict pays out of his own pocket are determined, how is this ensured in practice? If the offender's family does not cooperate, can the treatment of the offender be clearly stipulated in the prison conservative treatment? 4, prisoners with medication or the use of inspection, treatment equipment should be developed at their own expense; 5, criminals outside the prison treatment time should be limited (related to the external diagnosis and monitoring of the police force and security and other factors); 6, the treatment of serious criminals can be a special expense of the higher level of finance. And so on and so forth, the national legislative department or prison administration should work with the relevant authorities as soon as possible to make specific, operable and clear provisions.
Two: the serious criminals on medical parole in two difficult
1, with the insured person's problem.
Serious criminals' condition meets the conditions of medical parole, the offender's family in order to let the prison to pay for medical treatment and intentionally do not agree with the guarantor, and in the process of care to monitor the prison's treatment of criminals' attitudes and behaviors, so that the prison can not enter the parole process. For example, I prison offender Bai Moumou, in the prison education period, due to sudden cerebral hemorrhage, limb paralysis, into the critical state, in line with the "criminals on medical parole disease disability scope" the provisions of the seventh. White prisoners' relatives from agreeing to take the bail to suddenly do not agree to take the bail, its backtracking on the understanding shown is: I bail people back still have to spend their own money, you prison for me to cure it, otherwise I regret it, do not bail. When the relatives of the white prisoners finally agreed to bail, the prison had no choice but to spend part of the treatment costs for the prisoners on bail. The kinship in the parole is covered by monetary interests and law enforcement confusion. In the enforcement of the blank spot without the system to regulate the situation of the prison is very easy to be so "lead by the nose to go". And this is difficult, as long as the six aspects listed in question one has a prison in favor of the specific operation of the provisions of the criminal belonging to the "no opportunity to take advantage of", no "reason" can be stirred up, it is easy to solve and breakthrough. Prisons will not be afraid of making mistakes in law enforcement and trembling, compromise.
At the same time, the issue of the legal responsibility of the guarantor of medical parole, here also have to be raised again.
In the *** Central Political and Legal Committee to the political and legal (1996)) No. 30 document [7] issued on the law to strengthen the management of criminals on medical parole in the notice of the fifth issue specifically pointed out that: "the guarantor is not responsible. The guarantor shall have the responsibility of managing, restraining and guaranteeing the criminals on medical parole." However, many guarantors have no sense of responsibility, do not fulfill their obligations and do not really play the role of a guarantor. Existing laws do not provide for the legal responsibility of the guarantor, resulting in the guarantor's name is not real, and is virtually non-existent. Medical parole offenders out of custody or reoffending, the guarantor that they have nothing to do with their own, outside the custody of the insurance, insurance and not the same. The guarantor's responsibility for the fault can not be pursued, to the work of medical parole has brought many problems and difficulties.
Regrettably, in 1997, the new "Criminal Law" [8], did not in a timely manner will be the Central Political and Legal Committee in 1996 pointed out that this legal loophole to be remedied, until today is still a problem, a pile of difficulties. The guarantor and the prison signed six copies of the "criminals released on medical parole to take the guarantee", stipulates the guarantor's six guarantee responsibility, and there is "if I have not fulfilled the above guarantee responsibility, I would like to be legally liable" content. In our opinion, although the guarantor is a prisoner, he is a citizen in the full sense of the word, as long as he is guaranteed, that is, and the judicial authorities have fulfilled the responsibility of supervision of the offender, and as the supervisor of the particular offender, the guarantor is the main body of the legal sense of the supervisory responsibility. If the offender is out of control, missing or crime, it should be depending on the actual situation of the guarantor in order to suspected of dereliction of duty caused by the detained person escape crime or harboring crime, etc. in order to pursue its legal responsibility.
The provincial prison administration in conjunction with the provincial people's procuratorate to the supreme people's procuratorate to put forward a clear request for instructions, suggesting that according to the above understanding of the legal responsibility of the guarantor, and to determine the exercise of the right to investigate the case of the prison and prosecute the right to recommend that the prison to exercise jurisdiction. This as long as the formation of judicial interpretation, can quickly make up for the Central Political and Legal Committee in 1996 employment has pointed out the practice and the loopholes in the law, so that the work of medical parole many problems and difficulties can be better resolved.
2, on the socially dangerous criminals can be released on medical parole.
As mentioned above, Wu, the verdict of the court is precisely to the offender is socially dangerous and decided that the prison must be admitted to the execution of the prison, the prison according to the facts of the crime and other circumstances that the court admitted to the execution of the decision of the reasons are not sufficient. When the condition meets the conditions for medical parole can also be implemented on parole, the grassroots understanding of the law and regulations are still divided.
The supreme people's court on the people's court to decide to suspend the execution of three kinds of circumstances, as long as one of the circumstances, the people's court can decide to suspend the execution of the people's court. (a) serious illnesses require medical parole; (b) pregnant or breastfeeding their babies; (c) life can not take care of themselves, the application of temporary imprisonment will not endanger society. See Legal Interpretation (1999) No. 1. It seems that situation (a) is not subject to situation (c), i.e., situation (c) cannot ipso facto negate situation (a). Article 214, paragraph 4 of the Criminal Procedure Law is the content of situation (iii).
But the actual implementation of the court may be due to shirk the burden of responsibility and reluctance to make a decision on the suspension of imprisonment, and even more reluctant to the prison refused to accept. Because the prison refused to accept if it is based on the condition, the court will have to identify the condition and make the decision of temporary imprisonment and long-term responsibility.
The Chinese people's **** and the State Criminal Procedure Law, article 214, paragraph 1, paragraph 1, provides that "serious illnesses require medical parole," can be suspended from imprisonment; the second paragraph of the provisions of the "for the application of medical parole may have a socially dangerous criminals," the second paragraph of the provisions of the law. ...... shall not be released on medical parole"; while paragraph 3 further provides that "where an offender has a serious illness that requires medical parole, the hospital designated by the provincial people's government shall issue a document certifying that it has been approved in accordance with the procedures prescribed by law. ". This is another breakthrough in the restrictive content of the second paragraph, reflecting the rigor and rationality of the logical structure of the law. Therefore, even if the offender may be socially dangerous, as long as the condition necessitates it, the prison can of course initiate the medical parole procedure in accordance with the law. In order to serious and prudent, and clear specific responsibility, the third paragraph also made "found that the offender on medical parole does not meet the conditions of medical parole, or serious violation of the provisions of medical parole, shall be promptly returned to prison," which puts forward a more stringent requirements for the prison's activities on medical parole.
So, there may be a social danger, as long as the offender really has a serious illness, must be released on medical parole, the prison has the legal right to start the medical parole program, not subject to the corresponding decision of the court when the offender is admitted to prison. The Ministry of Justice, the Supreme People's Procuratorate, the Ministry of Public Security issued in 1990, "criminals on medical parole execution measures" [9] of the second provision and the Chinese people's *** and the State Criminal Procedure Law, article 214 of the principle is consistent, and there is no contradiction or contradiction.
In summary, for criminals suffering from serious illnesses, prisons in the implementation of the treatment should have a comprehensive and specific provisions in the standard, so that the legitimate rights and interests of criminals are legally protected. Can not be due to the good and poor economic conditions of the prison and the treatment of criminals appear big difference, also can not be due to the prisoners, criminal attitude of soft and hard and produce treatment treatment difference. It is therefore very urgent and necessary that the factors set out in question 1 should be identified to form a system or statute, all of which can be regulated and implemented in accordance with the law. This will not only provide good guidance to prisons on the standardized treatment of seriously ill criminals, but will also resolve the difficulties of law enforcement in medical parole activities. At the same time, this is also the "three" construction of prison work on the legalization of the specific embodiment of the requirements.
The above quoted article as a reference, especially the content of the second, 1 is more worthy of reference According to China's current legal provisions and the legal environment in practice is very difficult to operate often have a great deal of discrepancy