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Studies On The Civil Liability Of Medical Damage

Posted on:2005-03-09Degree:MasterType:Thesis
Country:ChinaCandidate:X E ZhuFull Text:PDF
GTID:2156360122485386Subject:Law
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Medical disputes is a heavy and hot talking point in today's china. The law problem which concerning the contradiction between doctors and patients has been a hot ,thorny issue in civil law field. In the past, the lawful rights of both the doctors and the patients couldn't be protected validly, due to not only the relevant theory research and laws are imperfect, but also different people have different views about the relationship of hospital and patients, which is one of the main factor of violence accidents .With the Regulations for Handling the Medial Accidents and the Opinions of The Supreme People's court on Evidence of Civil Case came into force, it has changed in some way , but there still some problems . For example, what is the extend that hospital should responsible to the medical damage? What is the attribute of medical damage's civil liability? Is it breach of contract or tort, or the coincidence of each other? How to protect the lawful rights of both doctors and patients, at the same time, medicine can develop healthily? What is the extent of compensation which caused by medical damage?This article tries to analysis from the point of civil liability which caused by medical damage, aiming at the balance of legal rights which between the hospital and patients, considering relevant theory research and practice of jurisdiction, comparing the liability for breach of contract and the liability for infringement of rights that caused by medical damage, which was argued hotly in recent years. Analyzing the coincidence of contractual liability and tort liability and some trend concerning civil liability of medical damage. This thesis is made up of four parts except preface. There are about thirty-five thousand words in the whole thesis.Chapter one, what is "medical damage" and what is the attribute of medical damage been studied. All fault medical practice which caused no interest to patients is "medical damage", its connotation is more wide than "medical accidents". There is contraction between "no medical accident no compensation" in the Regulations for Handling the Medical Accidents and "there is fault there is compensation" in civil law theory, it obeys the relevant articles in General Principles of Civil Law of The People's Republic of China, which is disadvantage to protect the lawful rights of patients. Therefore, the standard which hospital should burden the civil liability is "medical damage", not "medical accidents". At the present time, according to the theory of civil law, general speaking, what the attribute of medical damage's civil liability should be the coincidence of the liability for breach of contract and the liability for infringement of rights. Chapter two and three, analyzing the contractual liability and tort liability of medical damage, emphatically, the coincidence problem of each other.There are common in responsibility tenet, burden of proof, element of liability, form of liability and counteract between each other, at the same time, thereare some distinction, such as prescription, extend of liability, escape clause and contentions jurisdiction etc. In some way, the liability for breach of contract is advantage to the development of medical. At present, we can take the chance of codifying the Civil Code of China, taking the medical contract as model contract, classifying it into the law of obligation subprovision in Chinese future Civil Code. Specifically, duty of care, duty of loyalty, duty of patients' cooperative duty, the theory of patients' informed consent and other rights and duties of both sides should be contained in the Civil Code. As for the problem of liability coincidence, we can consult the theory of claim coincidence. But we should perfect it, such as solving the problem of "bring an action against twice" and "double liability". At the same time, restrictive coincidence should be taken, in other words, patients' right of choice should be limited in some situation.Chapter four, there are some new tendency about the ci...
Keywords/Search Tags:Liability
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