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The Research On The Liability Of Medical Tort

Posted on:2008-08-17Degree:DoctorType:Dissertation
Country:ChinaCandidate:N MaFull Text:PDF
GTID:1116360215953092Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The background of the article was the status of the legislative and judicial of the medical tort in China. The article mainly discusses on the core problem of the medical tort including on the cognizance of medical tort liability, the type of medical tort liability, the legal nature of medical injury compensation. The article using the methods of comparison study and demonstration analysis, discussing the legislation value and using of the intentional torts on the medical tort. The article also deeply analyses the theory, values, operation mechanism and impersonality criterion of the factors on the medical fault tort liability, so as to finding a workable method for the judicial practice.The article is composed of five chapters:Chapter one Introduces the reason of the issues raised and the purpose and significance of the study on the medical tort liability at the current, and comprehensively explains the doctor-patient relationship and medical tort theory which to discuss the establishment of medical tort liability theoretical framework and specific system of medical injury compensation in next chapters.The chapter two mainly discusses the cognizance of medical tort liability. medical tort liability is fault liability according to the liability principle on the tort law,and the fault tort liability also is important parts in this article, but, there are intentional torts in the medical tort. From the factors of the medical tort liability, comparing the medical intentional tort actions and the medical fault tort actions, the author analyses the theory and criterion of the cognizance of medical intentional tort liability. At the same, according the fault liability theory, the evidence of medical tort liability provides the basis of facts for the cognizance of medical tort liability. Because of the difference of factors between intentional tort and fault tort, and the superiority for intentional tort to crime, so medical intentional tort is been using in the legislation. In other chapters, the author also discusses the problem of the medical intentional tort.The author divides several kinds of medical tort liability from different points of view in the 3rd chapter of the article. So it'll provide practical basis to solve specific medical tort cases in judicial practice. The medical tort liability can be divided into two kinds according to existing fault or not, one is intentional tort liability, the other is fault tort liability. From the actions, It can also be divided into the act or no-act tort liability by the medical actions. From the harm, It can also be divided into medical accident tort liability and non-medical accident tort liability. From whether existing the relation of contracts, It can also be divided into tort liability with contractual obligation and tort liability without contractual obligation. According to the numbers of the tort citizens , It can also be divided into joint tort liability and individual tort liability. Although there are sort of intersections in the classification, it is considered for the need of solve the question. And it makes us clear for how to cognize and understand the medical tort.Chapter four is about the methods of bearing medical tort liability, the compensation for damages as the main relieve methods based on the law of tort law as Civil Relief Act can realize most economy compensation for victims. Through the determine the nature of medical tort liability and the analyse of the compensation of subject, the author thinks the compensation of subject is medical institution in the medical tort case. On the claim of medical tort, the author indicates way of dead and embryo's right of claim damages and emphasizes the limitation of action of the medial tort compensation claim. On the damages range and the method of account, the author mainly discusses the estate or non-estate damage in the medical treatment, and the key is the degree of doctor's fault. In the chapter , the author also discusses the spiritual damages on the medical tort. So it is necessary for us to recognize the core problems on medical tort liability if we want to construct the mechanism of assignment and claim for the medical tort damages.Chapter five is about the medical tort Liability exemption. Through dividing the types of the liability exemption, The author discusses the problem for legal exemption and the principle of plea on the exemption of medical intentional tort and fault tort. comparing the legal exemption used on the medical tort liability in the common law countries and civil law countries, and comparing the principle of fault plea, the author defines the intension and extension of medical tort liability, so it's possible to instruct judicial practice on medical tort in our country in the future.At the epilogue of the article, the author thinks that the professional liability will been regulated in the medical tort liability of China Tort Law, special medical law also is instituted, in order to meet the need of medical industry. The medical liability insurance system, medical arbitration system, and social medical insurance system and other law institution will set up and perfect the exterior environment of the medical tort legislation and justice practice , so it'll provide a opportunity to dispose medical tort liability in society.
Keywords/Search Tags:the Liability of Medical Tort, Fault Liability, Compensation for Damages
PDF Full Text Request
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