| A close diachronic investigation reveals the very long history of criminalprosecution for medical malpractice, which can be dated back to the18th century BCwhen the Babylonian Code of Hammurabi had already imposed regulations onmedical negligence. In China, the ‘Code and its Interpretations of Tang Dynasty’ wasthe first to describe medical negligence as a crime, and the law concerning medicalnegligence remained the same until the end of the Qing Dynasty when certainmodifications were made. In the past several centuries, research into medicalmalpractice has long been an important focus in Medical Criminal Law, a branch ofthe criminal law in the European legal system especially in Germany and Japan. Andno medical malpractitioners are exempt from criminal responsibility inBritish-American legal systems either. Based on a detailed empirical comparison ofthe theoretical studies and legal practices in the countries representative of two majorlegal systems, the thesis involves discovering the predicament of medical malpracticelegislation and judication in China and constructing a theoretical framework forfurther researches on the criminalization of medical malpractice in hope of improvingthe policies, legislation and judication that pertain to medical negligence.Take the introduction aside, the rest of the thesis is divided into five chapters.Chapter one investigates medical practice and medical negligence. Chapter twoexamines the theoretical basis of the criminalization of medical malpractice and an empirical analysis is also made. Chapter three explores the cause and effect ofcriminal medical malpractice and its corresponding distribution of responsibilities.Chapter four draws the boundary between criminal case and civil case of medicalnegligence. Chapter five provides some suggestions for the improvement oflegislation, judication and policies that pertain to medical negligence.The introduction covers the reason why I want to make an in-depth research oncriminal medical malpractice, its status quo and research methods, followed by astatement of my central ideas. Firstly, I investigate the research history of criminalprosecution of medical negligence, its status quo and future, followed by a clearstatement of the theoretical and practical significance of an in-depth research on thecriminalization of medical malpractice, and then examine the limitations of previousdomestic studies on this topic after a careful comparison and analysis. I hope thatfurther systematic study on criminal medical malpractice can extend the researchwork in this field both theoretically and practically.Chapter one provides a careful investigation of medical practice. It is thetheoretical premise and logical starting point of my argument and falls into3sections.The first section gives a definition of medical practice and its characteristics,connotation and denotation, which serves as the premise for the judgment of theillegitimacy of medical malpractice. Firstly, a detailed survey was made of theconcept of medical practice in theory and practice in ancient China, Taiwan regionand Japan. Based on a in-depth discussion of some hot topics both home and aboardconcerning the purpose, behavioral agent, behavioral object, danger of medicalpractice, I proposed the definition of medical practice in both broad and narrow sense,its classification and characteristics including the definiteness of its behavioral agent,the validity of its purpose, the operationality of its medical service, harmfulness ofmedical operations, the applicableness of health care standards and limitedness ofbehavioral effects. Section2focuses on the effects of the development of medicalethics on medical practice and the problems and challenges that the advancement oflife science and patterns of medical practice have brought up to modern criminal law. I concluded that law cannot be a mere onlooker who doesn’t show any concern toscience and that law ought to be reliable guide to science. Therefore, there is absolutenecessity of imposing more severe punishment on modern high technology crime andcriminal negligence. Section3firstly made a detailed summary of two controversialtheories in the long history of two major legal systems, namely medical negligenceand medical non-negligence, followed by constructive comments. Secondly, thereasons for supporting the theory of medical negligence in the legal system of Chinawere listed. Lastly, helpful suggestions were offered to help with the criminalizationof medical negligence within the current context of science development, changes ofmedical practice patterns and informationalization of medical services.Chapter2presents the theoretical base and an empirical analysis of medicalmalpractice as the base for further theoretical argument and supporting details.Section1defines criminal medical negligence as a kind of professional negligence.An extensive exploration of world laws was carried out to discuss the characteristicsof medical malpractice as a kind of professional negligence. Based on a detailedsurvey of relevant concepts of criminal negligence and professional negligence, theconcept of criminal medical malpractice is defined to serve as the theoretical andpractical base for imposing more server punishment on medical malpractice than onother professional negligence. Several cases are used to exemplify the commonconsequences caused by serious medical malpractices and to refute the idea ofcriminal immunity to medical malpractice. This section ends conclusively with theabsolute necessity of criminalization of medical malpractice. A general introduction ofmedical malpractice legislation is made in section2, covering the status quo and trendof medial malpractice legislation in some typical countries and regions representativeof two major legal systems, the history of medical malpractice legislation in Chinaand the origin of the article335in the Criminal Law of the People’s Republic of Chinaand its current modifications. Section3provides a detailed analysis of major medicalnegligence cases in China since medical negligence was described as a crime in1997and a comprehensive description of the predicament of legislation and judication pertaining to medical negligence.Chapter3explores the causes and effects of criminal medical malpractice andthe corresponding distribution of responsibilities, and covers the features andjudgments relating to the cause and effect of criminal medical malpractice, the effectof medical testimony in the causes and effects of criminal medical malpractice and thecorresponding distribution of criminal responsibilities in the case of medicalmalpractice.Section1describes the characteristics relating to the cause and effect of criminalmedical malpractice. Section2discusses the judgment relating to the cause and effectof criminal medical malpractice, focusing on the applicability of the conditionaltheory, the equivalent theory and the lemological causality in medical malpracticecases. Section3describes the roles that medical malpractice testimony plays in thejudgment of causality of medical negligence, analyzes important experiences that twoforeign legal systems gained in the criminalization of medical negligence and theorigin and predicament of binary pattern of medical testimony in China. It concludedthat the judgment of medical negligence should be based on medical testimony andthat there is urgent need to construct an effective legal testimony system. Based ondanger-allocating theory, section4, which is a discussion of the distribution ofcriminal responsibilities in the case of medical malpractice, explores the danger theory,danger-allocating theory, principle of reliance and supervisory negligence theory andtheir application in criminal medical malpractice, which provides a fundamentaltheoretical base for the accurate assessment of criminal responsibility of medicalmalpractice.Chapter4draws a clear boundary between criminal case and civil case ofmedical negligence. It begins with the twice lawbreaking theory and the componentsof the crime of medical negligence in article335. And then a clear boundary betweencriminal case and civil case of medical negligence is drawn. All is done for theaccurate judgment of criminal responsibility of medical negligence.Section1examines the legal grounds for the clear boundary between criminal case and civil case of medical negligence, which is argued in this thesis to be thecurrent criminal law and civil law following a detailed survey of the history ofmedical malpractice legalization in the criminal law and civil law in China and theirdifferences. Section2explores the clear boundary between criminal case and civilcase of medical negligence under the framework of article335of current criminal lawcovering the damage fact distinction, the boundary of illegal behavior and subjectiveguilt. The last section sums up common medical malpractice situations where themedical practitioners are not required to bear criminal responsibility though serverinjuries even deaths occur.Chapter5provides some suggestions for the improvement of legislation,judication and policies that pertain to medical negligence. It firstly investigates thepolicies on medical negligence in major world countries, and then puts forward someconstructive suggestions for the improvement of legislation, judication and policiesthat pertain to medical negligence in China.Section1introduces the policies on medical negligence in major world countries.Following a detailed investigation of the criminal policies in the countriesrepresentative of the two legal systems,2conclusions are reached that foreign policieson serious medical malpractice are too strict and that there are much change in theirpolicies in consideration of the interests of different parties. The reasons for the fastincrease of medical dispute in China are also uncovered. Section2provides someuseful suggestions for the criminalization of medical malpractice. I share the famousview of Franz von Liszt’, the famous German jurist and criminologist, that the bestsocial policy is the best criminal policy, and suggest that we should strengthen thepreventive function of criminal law, reconstruct medical ethics, expand properly thecoverage of criminal responsibility, improve medical support system and medicalinjury relief system. Section3puts forward some constructive suggestions for theimprovement of legislation and judication that pertain to medical negligence in China.I argued that the description of medical negligence as a crime in criminal law shouldbe abandoned. The crime of professional negligence can be listed in the section “Violation of Civil Rights, Democratic Rights” and criminal regulation of thiscategory of crime should be unified. If the original crime is to be retained, a newname,“crime of serious medical negligence”, should be used to describe it, and itshould be included in the section “Violation of Civil Rights, Democratic Rights”.What’s more, relevant regulations of corporate crime should be added. As to themedical malpractice testimony system, a double-level system is recommended. Aprovincial criminal medical malpractice testimony committee should be set up.Regarding the standard for the judgment of medical professionals’ medicalmalpractice, I think the current level of health care should be taken into considerationwhile making judgment of medical professionals’ medical malpractice.The criminal law can be modified to improve the maximum punishment and addfine a qualification penalty. The article pertaining to medical negligence can bechanged as follows:“Professional medical practitioners who has brutally violatedtheir duty of care or deviated from their normal medical techniques and caused seriousdeformity or deaths of their patients should be sentenced to less than five yearsimprisonment or criminal detention with a fine or a separately imposed fine.Institutions which commit the crimes mentioned in the preceding paragraph shall besentenced to a fine, and principal personnel directly responsible for the crime andother personnel with direct responsibility shall be punished in accordance with thestipulations of the preceding paragraph.”... |
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