作为软法的行业标准研究——以卫生行业标准为视角

数量众多的行业标准是中国行业治理过程中的软法, 卫生行业标准便在其中。卫生行业标准不符合严格意义上的法的形式特征, 其约束力也与严格意义上法的约束力存在本质差别。卫生行业标准是卫生技术操作的规则依据, 是卫生行政执法者进行卫生执法的重要依据, 是司法者裁判相关卫生操作行为合法性与否的重要参考。卫生行业标准之所以能够在卫生行业治理中发挥类似于法的作用, 其原因在于作为一种软法的卫生行业标准能够弥补硬法之不足, 能够顺应卫生行业公共治理的内在需要, 且能够利用其与硬法之间的关系使自身得以推行。就目前来看, 中国卫生行业标准在行业治理方面还存在一定不足, 需要采取相应对策予以矫正。卫生行业标准是行业标准的一种, 对这类标准的分析可以映射所有行业标准。

On the Industry Criteria as Soft Law: A Perspective from Health Criteria

Industry criteria of a large quantity are soft laws in China’s industry governance, among which are health industry criteria. The health industry criteria don’t conform to the features of hard law in their forms, while their force is far different from hard law. Health industry criteria are not only the basis of health technology operation, but also the authority of health administrative enforcement. What’s more, they are essential references for the judges to judge the legality of health operation. The reasons why health industry criteria could play the role as law in the governance of health industry rest on three factors. The first is that as soft law, they can make up for the deficiency of hard law. The second is that they meet the need of public governance of healthy industry. The third is that they can use their relation with health hard law to help their enforcement. China’s health industry criteria have certain deficiency in the governance of healthy industry, which needs countermeasures to rectify. Health industry criteria are branch of industry criteria, which means the on such criteria is also applicable to all industry criteria.