Research On The Character Of Legal Relationship Between Doctors And Patients

In this thesis, I focus on the character of legal relationship between doctors and patients. The reason for my research is two-fold. First, the real problem facing us is the fact that doctor-patient relationship is getting worse and worse and that the related conflicts is getting more and more. Second, the doctor-patient relationship is generating a lot of discussions among intellectuals, which fall under two main areas: the doctor-patient conflicts occurred in the period of social change; the possibility of legal application in doctor-patient conflicts. Scholars have to think about problems such as the complexity of legal settlements and the invalidity of legal assistance.The current law system is somewhat impotent to solve the increasing conflicts between doctors and patients. The main reason for this is that something needs to be changed in the application of law. Undoubtedly, the premise of legal application is a definite character of legal relationship, because the principle of the attached obligation and compensation and the dealing mode of solving the doctor-patient conflicts are determined by the character of legal relationship between doctors and patients and its legal application. We can even say that the problem of legal application is that of the character of doctor-patient relationship, which in essence is the problem that how to attribute the obligations, to protect the interests and to afford the ventures. Therefore, the character of legal relationship of doctors and patients is significant for resolving the doctor-patients conflict, and it also an unavoidable problem in law which aims at social justice. In this paper, I focus on the character of legal relationship of doctors and patients, discussing it deeply, so as to reach a new level in legal research on doctor-patient relationship.This article is composed of five parts.The introduction, as the first chapter, is the background,basis and premise of this article,which defines the matters the text wants to discuss.The centual concepts in the article include as follows:the Physician-patient relationship;the legal relationship between doctors and patients; the medical side; the suffering side.In the second chapter , this article wants to comment the five different viewpoints on the character of doctor-patient relationship which the people hold in China's academic circle. And then,the article will discuss the theory on the the classification on department law. The most popular viewpoint is that the doctor-patient relationship is a kind of civil legal relationship. The second viewpoint is that the doctor-patient relationship is a kind of economic (viz. consumptive) legal relationship. The third one is that it is a kind of administrative legal relationship. The forth one is that it is a social legal relationship. While the last one is that it is neither a transverse civil relationship, nor a vertical administrative relationship, but a sidelong one.In my opinion, the aforementioned viewpoints are essentially the same in tenets, principles and ideas, except that of administrative one. The reason for several different viewpoints being proposed is that the department laws they rely on are deficient. It will be easier to solve the problem if we can understand the premise of it, which is the theory of department law.I propose that it is reasonable to classify the current legal system with the theory of unity of subjection and objection. As to the subjective aspect, it is the domain in which social environment has caused some specially social and legal relationship. While for the objective aspect, it is the explanation that the scholars make on some legal articles and their relationship with their social basis. In my idea, the subjective aspect is dominant, in which the decisive element is the value aim of law. Therefore, comparing with the adjusting object, the value judgment is more essential. I then conclude that the inner spirit of law entails in the classification of department laws.According to the above criterion, I divide China's current legal system into three parts, which are private law, public law and social law. Following to the inherent logic of the legal system, I also insist that different legal domains interrelate, though each of them has separate legal departments.China's legal system is as follows.Based on such a legal system, the legal relationship of doctors and patients are category of legal adjustment of medical issues, which needs to show its own character, and to be an independent legal department, belonging to the domain of social law. In the new legal system, the most extraordinary one is social law, which has originated with the new social problems since the 20th century. There has no consensus being reached since the definition of social law was proposed. In a word, the definition of social law in this paper is that it is the law which can ensure the economic, social and cultural right of citizens and can guarantee the obligation of the government's public service and should separate from private law and public law.In the third chapter ,the article discuss the social law and medical law. I think that the legal relationship between doctors and patients belongs to the domain of social law. The reason for this is two-fold. From a subjective point of view, medical law has a specific value of goal, From an objective point of view, medical law has its own unique regulated objects.In the fourth chapter,the article discuss the theoretical foundation of the classification from four aspects.In the political aspect, what the doctor-patient relationship concerns is the right of citizens'health, which is actually an ethical issue, because the right of health belongs to social right, while social right as one of the basic human right should be protected independently. In the economic aspect, public sanitation and basic medical service play a positive role in social affairs, which are semi-public products. Usually, we can take both public (marketing) mode and mixed mode for semi-public products. In practice, the affording mode for semi-public products depends on the degree of exterior effect. When it is in a large degree, it can be regarded as pure public products and public affording mode is taken. Therefore, the government should afford the payout, which is obviously positive in exterior effect. In the legal aspect, the thought of social implication is the basis for our demonstration on the problem that the doctor-patient relationship belongs to social law, because there must be difference between powerful part and weak part in society, which are changeable in different time. There is no reason for the society to discard the weak-power group. Moreover, the whole society also has some reliance on the weak group, because any group exists only when it comes up dependence with other groups mutually. Only when different groups cooperate in an efficient way, can the value of each group be achieved and the compositions of all social powers be created. If there is too much conflict and attrition among different social group, the potency of social system will be consumed insignificantly. Hence, all the social groups should unite together by cooperating for the sake of common winning. In this sense, the last mode of obligation attribution in doctor-patient relationship is attained. In the ethical dimensions, the change from procedure justice to actual justice is a necessary step for legal development and the final requirement of society.In the last chapter ,the article discuss the significance in practice .Firstly, it supplies an independent medical law with a theoretical basis. Secondly, it is a theoretical pivot for solving medical conflict with multi-mechanism, because the compulsion on the unfolding of doctor-patient relationship and the social interference in solving the conflicts are both the inner meaning of social law. Thirdly, it gives us a new viewpoint on achieving a harmonious relationship between doctors and patients, because the old dualistic viewpoint is abandoned. Things will get easier, if we changed the idea, there are four subjects in the relationship, which are the nation, the doctors, the patients and the society. On the one hand, the nation assures that the citizens are the subjects of obligation for their subsistence and health. On the other hand, when the conflict happens, the character of medical affairs needs to be considered, the social venture constitution should be used, and then the current condition will be improved.