Study On The Criminal Regulation Of Medical Crimes

Medical crime is a type of crimes which occurred in the medical activity. This dissertation studies the basic problems of medical crimes, the type of behaviors, the reasons of removing the criminal responsibility, and two new types of medical crimes. On this basis, this article gives some advices to improve China’s criminal legislation about the traditional and new medical crimes. This article consist six chapters, about 12 million words.In the introduction, first, take the study of current conditions of medical crimes both in China and abroad. Then it reveals the theoretical and practical significances of this paper.Chapter one is about the basic problems of medical treatment and medical crimes. Medical activity is the premise of medical crimes. First, it analysis the concept of medical behaviors at home and abroad, and define the new concept. Then, summarize the basic characteristics and behavior types. The traditional concept of medical crimes which as a cure purpose of the act has been unable to meet today’s medical technology and medical practice needs, in practice, there are many non-cure medical activities such as human trials and cosmetology. So, the traditional concept of medical crimes is no more suitable to these behaviors.Chapter two is about the medical negligent crime. Medical negligence is an attitude that in violation of health laws and relevant regulations in the medical act. It is an obligatory duty of care. Its characteristics are:medical negligence is a kind of professional negligence; medical negligence requires a higher duty of care.Then, it studies the duty of care. The duty of care from medical and health laws, regulations and administrative laws, civil laws and criminal laws; clinic provides routine care and medical literature. The article thinks that According to the medical standard of behavior to judge the duty of care is a scientific standard. Though the Subjective thinks that the specific situation of persons should be the judging standard, but this standard also contains certain objectivity, which is the basic ability of medical care. The content of medical duty of care is dynamic and manifold. It can be divided into general medical duty of care, special medical attention to duty, the duty of care in other categories. Each class also contains a number of specific content.Finally, it talks about the identification of the criteria of medical negligent crime. In this part, it researches the medical science standard and medical treatment standard. The former represents the latest developments in medical science and technology and cutting-edge results, the latter represents the general level of current practice of medicine. This paper argues that the medical treatment standard should be the standard of medical negligent. In addition to the medical environment, the ability of physicians also affects the negligent medical crime. Finally, it reveals the medical negligence in diagnosis, treatment, blood transfusion, surgery and other different activities.Chapter three, Medical intentional crime. First, this chapter discusses the basic problems of medical intentional crime. Then focused on analyzing two kinds of common medical intentional crime:fraud and obstruction of medical records management behavior. Medical fraud criminals are more subtle, not easy to find. This chapter analyzes the composition of the medical elements of fraud and analyzes some more contentious issues. Then focuses on the analysis of several types of medical fraud:the acts of medical fraud without professional qualifications; intentionally fabricated or exaggerated illness, to induce the victim attendance behavior; the publication of false medical advertising behavior; sales high-priced drugs, do medical examinations. Finally, we analyze the liability of Medical fraudSecondly, this obstruction of medical records management behavior was studied. This behavior not only violates the normal order of medical management, but also a violation of patient’s right to information, privacy and other rights. In practice, many behaviors may also constitute crimes.Chapter four, the reasons of non-crime. First it studies the appliance of theory of criminal law-the "permission risk" in the Medical practices. Then it researches the necessity and the composition of the "permission risk". This paper argues that it contains elements:1, medical personnel must have the appropriate qualifications.2, medical staff must perform a legitimate business.3, medical staff must adopt a prudent and duty of care.4, medical instruments and methods must be scientific and appropriate.Second, it discusses the "Informed Consent". This paper argues that the contents of the "informed consent" theory should include:Patients should understand the basic situation of the disease, treatment programs, and anticipated risks and so on. On this basis, according to patient’s individual conditions, psychological endurance and other specific circumstances, and then selectively informed by a doctor.Finally, the chapter explores the relationship between euthanasia and crime. This paper introduces the controversy over euthanasia and the legislations of euthanasia, then from the perspective of human rights and criminal law theory, consider that strict conditions of euthanasia should not constitute a crime. These conditions include: implementation of the main body of euthanasia, the implementation of the object, the implementation of the timing and method of implementation of the procedures.Chapter five, the new medical activity-organ transplantation crime. This chapter first examined the issue of brain death. The significance of brain death as the death standard is:1, brain death criteria in line with medical laws, to adapt to social and technological development.2, the establishment of brain death criteria can cause significant social effects.3, brain death standards help to carry out the activities of organ transplantation to save more people’s lives and health, it should insist that the death of brain death as the sole death standardThen it talks about the organ transplantation crime. Organ Transplant crime is divided into:commercial crime, crimes which violate the principle of voluntary, crimes which violate the principle of neutrality, violation of the rules of criminal intelligence and crimes of inhuman practice of illegal migration. This paper analysis deeply these acts, and comprehensive proposal put forward legislationChapter six, the new medical activity-Assisted Reproduction crimes. This chapter begins from the perspective of criminal law focus on analysis of artificial insemination. Artificial insemination has great hazard, but the criminal law has no rules about this behavior, which reflecting the delayed legislation. It gives some advices about the illegal transaction in human embryos, unlawful implementation of the artificial insemination procedure. Surrogacy pregnancy causes a series of ethical and legal issues. But there are so many gaps about surrogacy pregnancy legislations. Especially the commercial surrogacy pregnancy and surrogacy pregnancy between relations. Therefore, we should make full use of the existing criminal law to regulate surrogacy pregnancy crime. Meanwhile, criminal legislation should also be improved as soon as possible to respond to a number of acts of serious harm.