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Research On Medical Negligence Behavior In Medical Accident Crime

Posted on:2020-02-16Degree:DoctorType:Dissertation
Country:ChinaCandidate:F C LiFull Text:PDF
GTID:1366330575469614Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Medicine is the science of saving lives and dying,is the guarantee of today's healthy life,and the cornerstone of the rapid development of modern society.Medical staff apply medical science to the treatment of illnesses.They initiate medical treatment to treat patients,and there may be a risk of serious damage to the patient's body and even life.When this risk is caused by the medical staff's negligent violation of the duty of care,the behavior of the medical staff may be evaluated as medical negligence.In China,this behavior may be convicted as a medical malpractice.The criminal law regulates medical negligence in a way that is explicitly stated,not only to protect the patient's personal rights and normal medical management order,but also to establish a safe boundary for the legitimate practice of medical personnel.That is to say,the criminal law clarifies the type of behavior of medical malpractice crimes based on the principle of legality of a crime,thereby guaranteeing the freedom of medical personnel to conduct proper practice.In order to achieve this goal,the judiciary should correctly understand the medical negligence behavior and clarify the elements of the constituent elements that should be included in the crime.By doing so,the judiciary can judge each medical action in which the result of the violation has occurred,thereby realizing the protection of the legitimate interests of both the doctor and the patient.Criminal law hermeneutics,based on the interpretation of criminal law,explains the criminal law provisions related to medical negligence.Criminal law hermeneutics can translate the highly concise and generalized texts in the criminal law into conclusions that can guide specific behaviors,thus realizing the correct application of the law in judicial practice.This is also the core value of the study of medical negligence in the use of criminal law hermeneutics.Looking back at the judgment of medical malpractice in China,the first problem is that the number of judgments is too small,and at the same time,cases of violence against doctors often occur.The comparison between the two can easily conclude that the criminal law does not judge most of the medical behaviors that have infringed the results,so that the resulting contradictions are not properly resolved and have led to more vicious results.The evasive attitude of the judiciary to medical negligence reflects the imperfect judicial interpretation of the medical malpractice crime in China and the lack of theoretical reserves related to criminal law.The two are in each other's table.If we try to improve the judicial status quo related to medical negligence,we must respond to the existing problems of the judiciary with the theory of criminal law interpretation.According to the comprehensive judgment,at present,the judgment of the judicial organs in China on the crime of medical negligence has the problem of too few judgments,especially the problem that the number of guilty judgments is too small.In addition,there are problems such as misuse of constituent elements,unclear judgment of negligence,over-reliance on medical appraisal conclusions on behavioral identification,and tendency to interrupt only individual offenders.From the perspective of criminal law teaching,these problems can be summarized as three issues: the boundary of the duty of care is not clear,the judgment of negligence in supervision behavior is neglected,and the judgment of causality is missing.Before conducting research on the criminal law interpretation of medical negligence,it is necessary to first clarify the criminal status status of medical behavior,that is,whether the medical behavior may be evaluated as a medical negligence by the criminal law and constitute a medical malpractice crime.Although there have been scholars in history claiming that absolute or relative "medical behavior is harmless",no legislation of any major country has ruled out the possibility of establishing a crime of medical behavior.Therefore,the medical behavior must have the possibility of being evaluated as a medical negligence behavior when the infringement result occurs.The research on the criminal law interpretation level of the medical negligence behavior certainly has practical significance and theoretical space.However,medical behaviors with infringement results are not only judged by criminal law,but departmental laws such as tort law and administrative law may evaluate medical behavior.Moreover,the act cannot be examined by criminal law in the absence of the necessary elements.The launch of the criminal law evaluation means the initiation of criminal proceedings,which means that some of the rights of the perpetrators will be restricted or deprived.The theory of contemporary criminal law believes that before the evaluation of the crime of whether or not to establish a crime,it is necessary to determine the necessity of the criminal law to launch,that is,whether the behavior has criminal significance.The criminal law is based on the protection of legal interests.Only when the legal benefits that the criminal law deserves to be protected are violated,the criminal law must be activated.Otherwise,the criminal law will inevitably infringe on human rights.This process has long been a habitual operation of the judiciary before the commencement of criminal proceedings.Due to the provisions of the Criminal Law of our country,the result of medical negligence has become an important criterion for conviction,which is precisely the content of this judgment process.This judgment process should be the first step in the evaluation of criminal law and the basic boundary of the criminal boundary of medical negligence.In addition,China's criminal law theory is different from other jurisdictions,especially the crime constitution theory is more distinctive,and it is in sharp contrast with the civil law countries.Although the form is different,when the "four essentials" crime constitution theory and the hierarchical crime constitution theory are correctly applied in the case,the evaluation results will not be fundamentally different.Not only that,in the judgment of medical negligence behavior,the content and methods judged by the two sets of theories are very similar.It should be considered that the theoretical research on medical negligence in civil law countries can also be applied in China.However,considering that the theory of hierarchical crime constitutes a clear hierarchy and clear method,the study of medical negligence in the context of hierarchical crime constitutes a distinct advantage,and can fully absorb the advanced theoretical results of civil law countries.All negligent acts violate the duty of care.It is precisely because the perpetrator violates the duty of care that the behavior will result in the infringement,and the result will only occur,and the behavior of the perpetrator can be judged as negligent by the criminal law.Therefore,one of the cores of research on medical negligence is to clarify the situation in which medical negligence violates the duty of care.In the new negligence theory,the duty of care should be split into subjective attention obligations and objective attention obligations.Therefore,in the perspective of the new negligence theory,medical negligence is an act that medical personnel should foresee but does not foresee the result of the violation,and fails to take necessary measures to prevent the occurrence of the result.Or,medical negligence is a behavior in which medical personnel have not taken preventive measures even though they have foreseen the result of the violation.Whether the medical staff fulfills the subjective duty of care should be judged at the level of responsibility in the theory of hierarchical crime composition.Under the standpoint of meaning responsibility theory,medical personnel should anticipate the results of the violation of the patient's personal rights and the basic part of the causal relationship.Medical staff should specifically anticipate results rather than just feeling anxious.If the medical staff has the ability to anticipate the results and is not actually foreseen,then he violates the subjective duty of care;if he does not have the ability to foresee,but other medical personnel with general medical standards have the ability to foresee,then he still violates Subjective duty of care.The criteria for judging whether medical personnel perform objective duty of care should be objective.If,under the same circumstances,other medical personnel with general medical standards are capable of fulfilling the duty of care,but the medical staff does not perform,he should be considered to have violated the objective duty of care.The specific content of the objective duty of care should be specifically identified and difficult to generalize.Its content should come from medical habits,medical routines,technical norms,regulations,and previous behaviors.The establishment of a medical malpractice crime requires results.Medical negligence is a behavior in which the medical staff who have the duty of care in the medical behavior fails to perform the duty of care and the patient's personal rights are violated.Therefore,a crime can only be established when a legal causal relationship is established between the behavior of the medical staff and the outcome.It should be noted that the judgment of causality is the process of judgment after the behavior and results have been judged.It is the basis for judging the attribution of responsibility.However,this judgment cannot be equated with the judgment of responsibility.Therefore,a considerable causal relationship should be adopted to make an objective judgment.The theory of considerable causality has broken through the field of pure causality judgment,involving the issue of responsibility attribution,and the effect of judgment is not fundamentally different from the objective attribution theory.At the same time,when the objective imputation theory faces the complicated implementation behavior in the field of medical behavior,it often has problems due to the lack of pre-judgment of behavior.It should be considered that the judgment of causality of medical negligence should be judged by the lawful conditional condition and the objective considerable causal relationship.Objective imputation theory is meaningful only when judgments based on objective imputation theory can draw negative conclusions clearly and quickly.Medical behavior is different from other common behaviors in society.In most cases,it is necessary to work through division of labor.With the development of medical science,the complexity and sophistication of medical behavior far exceeds the past.The medical behavior that can be completed by one medical staff is very rare.Teamwork,division of labor treatment,supervision and guidance have become the norm in medical behavior.The most common of these is the supervision and guidance of senior medical staff in the medical behavior of other medical personnel.There is a clear causal relationship between the supervisory negligence in medical behavior and the negligent behavior of the supervised medical staff.Therefore,the supervision fault in medical behavior cannot be regarded as a general crime.In China's legislation and judiciary,there is very little explicit expression of supervisory faults.But this does not mean that the principle of supervision of negligence is excluded from the context of the Chinese Criminal Law.In fact,there are many similarities between the crime of dereliction of duty and the fault of supervision in the Chinese Criminal Law.Secondly,medical personnel have been sentenced to medical malpractice for supervising negligent behavior.The most obvious difference between supervisory negligence and general pass is the range of foreseeable objects of subjective duty of care.The supervisor should foresee the results of the poor supervision and guidance,the results of the actions of the supervised person,and the basic part of the causal relationship.In addition,the content of the objective attention obligation violated in the supervision of negligent behavior in medical behavior is also different from the general failure behavior.Although objective duty of care also comes from medical habits,medical routines,technical norms,regulations,and previous behaviors.However,since the supervisor should apply these objective rules and the behavior of the first action to the supervision and guidance behavior,the actual content of the objective attention obligation must be different.In addition,although some scholars believe that the theory of supervising fault should be based on the new and new negligence theory,this view conflicts with the principle of meaning responsibility.After studying the issue of criminal law hermeneutics,the path of identification of medical negligence should be sorted out to promote the identification of medical malpractice by judicial organs in practice.Combined with the previous research,we should further clarify the connotation of “serious irresponsibility”,further establish the judgment elements of causality and explore the identification of negligent behavior in medical behavior.In this way,it is possible to fully guide legislation and practice with the theory of criminal law interpretation,with a view to solving the related problems in the criminal practice of medical malpractice.
Keywords/Search Tags:Medical Negligence, General Negligence, Supervision Negligence, Causality, Duty Of Care
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