关于印发马鞍山市城市生活无着的流浪乞讨人员救助管理实施细则的通知
安徽省马鞍山市人民政府办公室
关于印发马鞍山市城市生活无着的流浪乞讨人员救助管理实施细则的通知
马政办[2010]88号
当涂县、各区人民政府，市政府各部门、直属机构，有关单位：
《马鞍山市城市生活无着的流浪乞讨人员救助管理实施细则》已经2010年11月3日市政府第68次常务会议审议通过，现印发给你们，望认真贯彻执行。
二〇一〇年十一月十一日
马鞍山市城市生活无着的流浪
乞讨人员救助管理实施细则
第一条 为完善社会救助制度，做好城市生活无着的流浪、乞讨人员（以下简称流浪乞讨人员）的救助管理，根据国务院《城市生活无着的流浪乞讨人员救助管理办法》和《安徽省城市生活无着的流浪乞讨人员救助管理办法》，结合我市实际，制定本实施细则。
第二条 本实施细则所称流浪乞讨人员，是指因自身无力解决食宿，无亲友投靠，又不享受城乡居民最低生活保障或者农村五保供养，正在城市流浪乞讨度日的人员。
第三条 市民政部门负责本市行政区域内流浪乞讨人员救助工作，市救助站具体实施流浪乞讨人员的救助工作。市救助站对流浪乞讨人员的救助是一项临时性社会救助措施。
第四条 市救助站应在火车站、汽车站、城区主干道、商业集中区等人流量大的地段设立救助引导牌，方便流浪乞讨人员求助，在重大节日、特殊天气等时期还应主动开展街头巡视救助活动。
第五条 将流浪乞讨人员救助所需经费列入财政预算，并根据当年度救助工作实际情况予以调整。在本市福利机构安置流浪乞讨人员的，应给予安置保障资金。
鼓励、支持社会组织和个人参与流浪乞讨人员救助工作。
第六条 市传染病医院、市人民医院、市中心医院是本市行政区域内流浪乞讨传染病人、危重病人、精神病人（三类病人以下简称流浪乞讨病人）救治定点医疗机构，负责流浪乞讨病人的救治工作。
第七条 市卫生部门应当督促定点医疗机构做好流浪乞讨病人的救治工作，并负责救治经费的核拨和管理。
第八条 市交通运输和铁道部门应当为流浪乞讨人员返回住所地或所在单位提供交通便利，对市民政部门和市救助站为流浪乞讨人员返回提供乘车凭证或购买车票方面给予优先照顾。
第九条 市司法部门应当为需法律援助的流浪乞讨人员提供法律援助；市人力资源和社会保障部门应当对年满16周岁、安置在福利机构、有就业能力的流浪乞讨人员提供免费的职业介绍和技能培训，对自主创业的给予视同孤儿自主创业的优惠政策。
第十条 市公安、市容管理等部门的工作人员在执行公务时发现流浪乞讨人员，应当告知其向市救助站求助；对其中的流浪乞讨病人，应送至相应定点医疗机构进行救治；对其中要求救助的未成年人和行动不便的老年人、残疾人，应当引导、护送到市救助站。
第十一条 流浪乞讨人员向市救助站求助时，应当如实提供以下情况：
（一）姓名、年龄、性别、居民身份证或者能够证明身份的其他证件，户籍所在地、住所地地址以及联系方式；
（二）是否享受城乡居民最低生活保障或者农村五保供养；
（三）流浪乞讨的原因、时间、经过；
（四）近亲属和其他关系密切亲属的姓名、住址和联系方式；
（五）随身携带的物品。
第十二条 以下人员不属于救助对象：
（一）虽有流浪乞讨行为，但不具备本实施细则第二条规定情形的；
（二）能提供个人情况而拒绝提供的；
（三）故意提供虚假个人情况的；
（四）恶意求助并威胁救助管理工作人员人身安全的；
（五）对正常的流浪乞讨人员，6个月内在本市救助站已接受2次及以上救助的。
第十三条 市救助站对属于救助对象的求助人员，应当及时提供救助；对不属于救助对象的求助人员，应当说明不予救助的理由。
对因年老、年幼、残疾等原因无法提供个人情况的求助人员，市救助站应当先提供救助，再查明情况。
第十四条 市救助站应当根据实际情况，对属于救助对象的流浪乞讨人员给予下列救助：
（一）提供符合卫生标准的食物和必要的衣物；
（二）提供符合基本条件的住处；
（三）对在站内突发疾病的提供一般应急性救治；
（四）帮助与其亲属或所在单位联系；
（五）为无力支付交通费的流浪乞讨人员提供乘车凭证；
（六）为流浪乞讨未成年人提供必要的科学文化、基本技能培训及心理辅导、行为矫治；
（七）对需治疗的流浪乞讨病人，及时送定点医疗机构救治。
第十五条 流浪乞讨病人在定点医疗机构救治期间发生的医疗费用，由定点医疗机构向市卫生部门核报；救治期间发生的生活费、护理费、杂费由市救助站向市财政部门核报。
第十六条 受助人员应当遵守下列规定：
（一）遵守国家法律、法规及救助站规章制度；
（二）服从工作人员管理，不得扰乱救助站救助秩序；
（三）爱护救助站内各类公共设施；
（四）不得从事违法犯罪活动。
受助人员违反上述规定需要追究行政责任、刑事责任的，移交相关机关依法处理。
第十七条 受助者在市救助站接受救助一般不超过10天，因特殊情况需要延长救助期限的，报市民政部门批准。
第十八条 有下列情形之一的，市救助站应终止救助：
（一）救助期满的；
（二）救助期内擅自离开市救助站的；
（三）救助期满无正当理由不愿离站的；
（四）提供虚假情况骗取救助的。
救助终止，应当办理离站手续，受助人离开市救助站；需护送的由市救助站送至目的地。
第十九条 受助人员自愿放弃救助离开市救助站的，应当事先告知，市救助站不得限制。未成年人和其他无民事行为能力、限制民事行为能力的受助人员离开市救助站，须经市救助站同意。
第二十条 对无法查明其亲属或所在单位，也无法查明其户籍所在地、住所地的未成年、老年和残疾流浪乞讨人员，由市救助站提出安置意见，经市民政部门认定，报市政府批准后，送市福利机构安置，当年安置费用市财政予以追加，次年起相关费用纳入市财政预算予以保障。
第二十一条 市救助站应当建立健全岗位责任制、安全责任制和工作人员行为规范等各项制度，实行规范化管理。
市救助站应当如实记载受助人员入站、获得救助、离站等情况，制作救助档案，并妥善保存。
第二十二条 市救助站及其工作人员有下列情形之一的，由市民政部门责令改正，视情节轻重给予直接负责的主管人员和其他直接责任人员通报批评或行政处分；构成犯罪的，依法追究刑事责任：
（一）不履行救助职责的；
（二）向受助人员及其亲属或者所在单位收取或变相收取任何费用、以任何借口组织受助人员从事生产劳动的；
（三）拘禁或者变相拘禁受助人员的；
（四）打骂、体罚、虐待受助人员或者唆使他人打骂、体罚、虐待受助人员的；
（五）敲诈、勒索、侵吞、损坏受助人员财物的；
（六）克扣受助人员生活供应品的；
（七）扣压受助人员的证件、申诉控告材料的；
（八）任用受助人员担任管理工作或使用受助人员为工作人员干私活的；
（九）调戏妇女的。
第二十三条 当涂县可参照本实施细则执行。
第二十四条 本实施细则由市民政局解释，自发布之日起施行。
Chapter V
Guidelines for Interpretation
of the WTO Covered Agreements
OUTLINE
I Introduction
II Application of Arts. 31, 32 of the Vienna Convention
III WTO Rules on Conflicts: Effective Interpretation
IV The Status of Legitimate Expectations in Interpretation
I Introduction
According to Art. 11 of the DSU, the panel's role is to “make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability and conformity with the relevant covered agreements”. In the previous chapter, we have examined the general standard of review labeled as “an objective assessment” regarding “the facts of the case”; clearly, for panels to fulfil appropriately their functions as designated in Art. 11 of the DSU, it is also indiscerptible to make such an objective assessment of “the applicability and conformity with the relevant covered agreements”. Therefore, the interpretation issue of the covered agreements arises. In this section, the author will scrutinize guidelines for interpretation applied under the WTO jurisprudence.
To resolve a particular dispute, before addressing the parties' arguments in detail, it is clearly necessary and appropriate to clarify the general issues concerning the interpretation of the relevant provisions and their application to the parties' claims. However, the complex nature of the covered agreements has given rise to difficulties in interpretation.
As noted previously, GATT/WTO jurisprudence should not be viewed in isolation from general principles developed in international law or most jurisdictions; and according to Art. 3.2 of the DSU, panels are bound by the “customary rules of interpretation of public international law” in their examination of the covered agreements. A number of recent adopted reports have repeatedly referred, as interpretative guidelines, to “customary rules of interpretation of public international law” as embodied in the text of the 1969 Vienna Convention on the Law of Treaties (‘Vienna Convention’), especially in its Arts. 31, 32. It is in accordance with these rules of treaty interpretation that panels or the Appellate Body have frequently examined the WTO provisions at issue, on the basis of the ordinary meaning of the terms of those provisions in their context, in the light of the object and purpose of the covered agreements and the WTO Agreement. These Vienna Convention articles provide as follows:
“Art. 31: General Rule of Interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Art. 32 Supplementary Means of Interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.”
II Application of Arts. 31, 32 of the Vienna Convention
Pursuant to Art. 31.1 of the Vienna Convention, the duty of a treaty interpreter is to determine the meaning of a term in accordance with the ordinary meaning to be given to the term in its context and in light of the object and purpose of the treaty. As noted by the Appellate Body in its Report on Japan-Alcoholic Beverages (DS8/DS10/DS11), “Article 31 of provides that the words of the treaty form the foundation for the interpretive process: ‘interpretation must be based above all upon the text of the treaty’. The provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions”. And in US ? Shrimps (DS58), the Appellate Body accordingly states: “A treaty interpreter must begin with, and focus upon, the text of the particular provision to be interpreted. It is in the words constituting that provision, read in their context, that the object and purpose of the states parties to the treaty must first be sought. Where the meaning imparted by the text itself is equivocal or inconclusive, or where confirmation of the correctness of the reading of the text itself is desired, light from the object and purpose of the treaty as a whole may usefully be sought.”
More specifically, the Panel in US-Sections 301-310 (DS152) rules that: “Text, context and object-and-purpose correspond to well established textual, systemic and teleological methodologies of treaty interpretation, all of which typically come into play when interpreting complex provisions in multilateral treaties. For pragmatic reasons the normal usage, and we will follow this usage, is to start the interpretation from the ordinary meaning of the ‘raw’ text of the relevant treaty provisions and then seek to construe it in its context and in the light of the treaty's object and purpose. However, the elements referred to in Article 31 - text, context and object-and-purpose as well as good faith - are to be viewed as one holistic rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Context and object-and-purpose may often appear simply to confirm an interpretation seemingly derived from the ‘raw’ text. In reality it is always some context, even if unstated, that determines which meaning is to be taken as ‘ordinary’ and frequently it is impossible to give meaning, even ‘ordinary meaning’, without looking also at object-and-purpose. As noted by the Appellate Body: ‘Article 31 of the Vienna Convention provides that the words of the treaty form the foundation for the interpretive process: 'interpretation must be based above all upon the text of the treaty'’. It adds, however, that ‘[t]he provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions’.” 1
In sum, as noted by the Panel in Canada-Automotive Industry (DS139/DS142), “understanding of these rules of interpretation is that, even though the text of a term is the starting-point for any interpretation, the meaning of a term cannot be found exclusively in that text; in seeking the meaning of a term, we also have to take account of its context and to consider the text of the term in light of the object and purpose of the treaty. Article 31 of the Vienna Convention explicitly refers to the ‘ordinary meaning to be given to the terms of the treaty in their [the terms'] context and in the light of its [the treaty's] object and purpose’. The three elements referred to in Article 31 - text, context and object and purpose - are to be viewed as one integrated rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Of course, context and object and purpose may simply confirm the textual meaning of a term. In many cases, however, it is impossible to give meaning, even ‘ordinary meaning’, without looking also at the context and/or object and purpose”. 2
With regard to Art. 32 of the Vienna Convention, it is repeatedly ruled that, “[t]he application of these rules in Article 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term. However, if after applying Article 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Article 32 allows a treaty interpreter to have recourse to ‘... supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion’. With regard to 'the circumstances of [the] conclusion' of a treaty, this permits, in appropriate cases, the examination of the historical background against which the treaty was negotiated.” 3
As a whole, under the WTO jurisprudence, with regard to the dispute among the parties over the appropriate legal analysis to be applied, as general principles or guidelines of interpretation, it is often begun with Art. 3.2 of the DSU. To go further, as noted by the Panel in Japan-Alcoholic Beverages, “the ‘customary rules of interpretation of public international law’ are those incorporated in the Vienna Convention on the Law of Treaties (VCLT). GATT panels have previously interpreted the GATT in accordance with the VCLT. The Panel noted that Article 3:2 DSU in fact codifies this previously-established practice”. Consequently, “the Panel concluded that the starting point of an interpretation of an international treaty, such as the General Agreement on Tariffs and Trade 1994, in accordance with Article 31 VCLT, is the wording of the treaty. The wording should be interpreted in its context and in the light of the object and the purpose of the treaty as a whole and subsequent practice and agreements should be taken into account. Recourse to supplementary means of interpretation should be made exceptionally only under the conditions specified in Article 32 VCLT”. 4
In short, it is may be the case that, it is generally considered that the fundamental rules of treaty interpretation set out in Arts. 31 and 32 of the Vienna Convention have attained the status of rules of customary international law. In recent years, the jurisprudence of the Appellate Body and WTO panels has become one of the richest sources from which to receive guidance on their application.
III WTO Rules on Conflicts: Effective Interpretation
The Panel Report on Turkey-Textile and Clothing Products (DS34) states concerning the conflicts issue that: 5
“As a general principle, WTO obligations are cumulative and Members must comply with all of them at all times unless there is a formal ‘conflict’ between them. This flows from the fact that the WTO Agreement is a ‘Single Undertaking’. On the definition of conflict, it should be noted that: ‘… a conflict of law-making treaties arises only where simultaneous compliance with the obligations of different instruments is impossible. ... There is no conflict if the obligations of one instrument are stricter than, but not incompatible with, those of another, or if it is possible to comply with the obligations of one instrument by refraining from exercising a privilege or discretion accorded by another’.
This principle, also referred to by Japan in its third party submission, is in conformity with the public international law presumption against conflicts which was applied by the Appellate Body in Canada - Periodicals and in EC - Bananas III, when dealing with potential overlapping coverage of GATT 1994 and GATS, and by the panel in Indonesia - Autos, in respect of the provisions of Article III of GATT, the TRIMs Agreement and the SCM Agreement. In Guatemala - Cement, the Appellate Body when discussing the possibility of conflicts between the provisions of the Anti-dumping Agreement and the DSU, stated: ‘A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them’.
We recall the Panel's finding in Indonesia - Autos, a dispute where Indonesia was arguing that the measures under examination were subsidies and therefore the SCM Agreement being lex specialis, was the only ‘applicable law’ (to the exclusion of other WTO provisions): ‘14.28 In considering Indonesia's defence that there is a general conflict between the provisions of the SCM Agreement and those of Article III of GATT, and consequently that the SCM Agreement is the only applicable law, we recall first that in public international law there is a presumption against conflict. This presumption is especially relevant in the WTO context since all WTO agreements, including GATT 1994 which was modified by Understandings when judged necessary, were negotiated at the same time, by the same Members and in the same forum. In this context we recall the principle of effective interpretation pursuant to which all provisions of a treaty (and in the WTO system all agreements) must be given meaning, using the ordinary meaning of words.’
In light of this general principle, we will consider whether Article XXIV authorizes measures which Articles XI and XIII of GATT and Article 2.4 of the ATC otherwise prohibit. In view of the presumption against conflicts, as recognized by panels and the Appellate Body, we bear in mind that to the extent possible, any interpretation of these provisions that would lead to a conflict between them should be avoided.”
It is clearly implied by the ruling above that, in the WTO system, any interpretation of the covered agreements that would lead to a conflict between them should be avoided. In this respect, as to WTO rules of conflicts, in the context that all WTO agreements were negotiated “at the same time, by the same Members and in the same forum”, the principle of effective interpretation is recalled. What a principle is it?
As ruled by the Panel in Japan-Alcoholic Beverage (DS8/DS10/DS11), effective interpretation is a principle “whereby all provisions of a treaty must be, to the extent possible, given their full meaning so that parties to such a treaty can enforce their rights and obligations effectively…. this principle of interpretation prevents [the panel] from reaching a conclusion on the claims … or the defense …, or on the related provisions invoked by the parties, that would lead to a denial of either party's rights or obligations.” 6 This ruling is upheld by the Appellate Body when ruling that, “[a] fundamental tenet of treaty interpretation flowing from the general rule of interpretation set out in Article 31 is the principle of effectiveness (ut res magis valeat quam pereat). In United States - Standards for Reformulated and Conventional Gasoline, we noted that ‘[o]ne of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention is that interpretation must give meaning and effect to all the terms of the treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility’.” 7
