Legal analysis of the government's expropriation of epidemic prevention medical materials

Recently, a notice of emergency disposal and requisition issued by Dali Health Bureau has aroused widespread concern According to the document, "on February 2, Dali health and Health Bureau carried out emergency requisition for 9 pieces of mask materials in Dali city through Shunfeng logistics." It is reported that the masks that have been expropriated are emergency materials entrusted by Chongqing municipal government and Huangshi Municipal government to be purchased by enterprises for epidemic prevention and control in Chongqing and Huangshi Subsequently, online novel coronavirus pneumonia prevention and control work in Chongqing, Huangshi and Cixi has been published online, and the letter to the Dali health and Health Bureau has been sent to request the release of the materials requisitioned On February 6, the headquarters of the epidemic work leading group in Yunnan Province criticized the above-mentioned expropriation Dali city should apologize to the headquarters of the new crown epidemic work, and the director of the Health Bureau was removed After condemnation and accountability, we can't help thinking about whether there is a legal basis for the government's expropriation in the incident? Is the requisition of emergency materials reasonable? To this end, Kangda law firm I medical legal service team will start from the existing laws and administrative law theory to answer questions and solve doubts for you 1、 The legal basis for the government to expropriate epidemic prevention materials is the administrative behavior that the administrative subject compulsorily obtains or uses the property of the opposite party according to law and gives reasonable compensation based on the needs of public interests In essence, government expropriation involves the balance of public interest and personal interest It not only guarantees the realization of public interest, but also protects the personal interest from excessive infringement Government expropriation is a typical specific administrative act for a specific counterpart According to Article 12 of the emergency response law, the relevant people's government and its departments may expropriate the property of units and individuals in response to emergencies Article 52 stipulates that the people's government that organizes the handling of emergencies may, when necessary, requisition from units and individuals equipment, facilities, sites, means of transportation and other materials needed for emergency rescue On January 24, 2020, the people's Government of Yunnan Province launched a level-1 response to major public health emergencies Yunnan Province is now in the state of responding to public health emergencies According to Article 33 of the regulations of Yunnan Province on emergency response, the people's government at or above the county level may, according to the needs of emergency response, expropriate the real estate or movable property of units or individuals according to law It can be seen that the government in response to emergencies, expropriation is based on laws and regulations 2、 Whether the materials in the mail are "trans provincial materials" According to Article 45 of the law of the people's Republic of China on the prevention and control of infectious diseases, when an infectious disease breaks out or spreads, the State Council has the right, according to the need of controlling the epidemic situation of an infectious disease, to mobilize personnel or transfer reserve materials in an urgent manner throughout the country or across provinces, autonomous regions or municipalities directly under the central government, and the local people's governments at or above the county level have the right to temporarily expropriate houses, vehicles and relevant facilities within their respective administrative areas Construction and equipment Thus it can be seen that the requisition of materials across the country, namely, across provinces, autonomous regions and municipalities directly under the central government, can only be carried out by the State Council Some experts believe that according to the above provisions, local governments at or above the county level can only expropriate materials within their own administrative areas and have no right to expropriate and mobilize materials from other provinces There is no problem with the above understanding, but can express delivery of materials delivered to other provinces but not yet leaving the administrative region be interpreted as "trans provincial materials"? Obviously, in terms of common sense and experience, although the above-mentioned materials are sent to other provinces through logistics, they are still physically within the administrative area of Dali city at the time of requisition The requisition of the above-mentioned materials by Dali city government does not belong to the situation of requisition of materials from other provinces and cities as stipulated by law It can't be interpreted as cross provincial expropriation because the destination of materials is outside the province In the same way, in case of an emergency, the police shall not expropriate a vehicle with a license plate going to another province The actual physical state of the material shall be the judgment condition of the expropriated material 3、 Whether the requisition of emergency materials conforms to the principle of rationality to evaluate a specific administrative act, in addition to the principle of legality, it also needs to be measured by the principle of rationality and proportion Legitimate administrative acts are not necessarily reasonable In order to prevent and control the epidemic situation in Dali City, the government of Dali City expropriated the materials purchased by Chongqing and Huangshi Municipal governments for epidemic prevention We can evaluate the rationality of the expropriating behavior from three aspects of the principle of proportion: first, the principle of appropriateness The administrative act must be helpful to the realization of administrative purpose In other words, the requisition of medical materials such as masks must be applied to epidemic prevention and control What is worth discussing is that there are news reports that Dali city will distribute the used masks to the personnel of industry associations and property companies, rather than directly used for the prevention and control of front-line medical institutions, which is questionable in the appropriateness of the use of the requisitioned materials Second, the principle of minimum infringement That is to say, we should choose the way which has the least degree of infringement on the relative person and reduce the impact and loss on the expropriated person as much as possible The epidemic is nationwide, not limited to Dali city The expropriation of materials used for epidemic prevention in other provinces and cities will bring great and irreparable losses to the epidemic prevention work in other provinces and cities, and affect the life, health and safety of people in other provinces and cities As the epidemic prevention materials such as masks and protective clothing are in short supply all over the country, whether Dali municipal government has exhausted other ways before requisitioning materials, such as contacting domestic and foreign enterprises to purchase materials, and issuing donation announcement to the public, etc When the government exhausts other ways and has no other better choice, the expropriation of materials may become one of the options Third, the principle of balance That is to say, the damage caused by the administrative act cannot be greater than the gains Specifically in this case, the inconvenience caused by the requisition of materials to the epidemic prevention and control of Huangshi and other cities in Chongqing is far greater than the convenience brought to Dali city By the evening of February 6, 566 cases had been confirmed in Huangshi, 400 in Chongqing and 10 in Dali From the epidemic data, we can see the difference between the urgency and severity of the prevention and control of the epidemic The above materials may be a timely help to Chongqing or Huangshi City, while Dali city is the icing on the cake, which is also the most unreasonable place for this expropriation Therefore, the expropriation behavior of Dali municipal government does not conform to the principle of proportion in administrative law, and the specific administrative behavior is unreasonable 4、 The return and compensation of the requisitioned materials shall be in accordance with the provisions of the law After the use of the requisitioned property is completed, it shall be returned in time in principle; if it is damaged or lost, it shall be compensated For those who fail to return or give compensation in time, the administrative organ or supervisory organ at a higher level of the requisitioning unit shall order them to make corrections, and the persons who are directly in charge and other persons who are directly responsible shall be punished according to law At present, the Dali municipal government has held a press conference to decide to return all the masks that have not been used If the masks that have been used cannot be returned, a compensation agreement shall be reached through communication to compensate them If the masks that have been used cannot be returned, and the subject of collection needs them, they shall be returned as soon as possible At present, in the special period of the national epidemic prevention materials shortage, the compensation is far less important than the scarce and precious epidemic prevention materials, but even if the relevant materials are replenished and returned, it will take a long time For the current urgent epidemic prevention and control work, it actually causes great difficulties, and this kind of loss may not be compensated by the existing legal channels As for the compensation standard of requisitioned materials, the fund compensation method is generally adopted The requisitioning unit can entrust an intermediary organization with asset evaluation qualification to assess the property loss according to the regulations: if the property is damaged but the use function can be restored after maintenance, the compensation shall be determined according to the necessary maintenance expenses; if the property cannot be repaired or the use function, loss or maintenance cannot be restored after maintenance If the repair cost exceeds the pre damage value of the property, the compensation amount shall be determined after comprehensive consideration of the replacement cost of the property, comprehensive newness rate, net residual value and other factors For property insurance compensation according to law, it shall be deducted from the compensation General secretary Xi Jinping recently stressed at the third meeting of the Central Committee of the comprehensive rule of law, "when the epidemic prevention and control become more and more serious, we must persist in preventing and controlling the disease according to law, promote the prevention and control work on the track of the rule of law, and ensure the smooth implementation of the epidemic prevention and control work" We will do a good job in all aspects of epidemic prevention and control, and win the battle of prevention and control.