Research On The Legal Validity Of Exemption Clause For Medical Injury

Since the World War II, the exemption clause for medical injury has emerged as the times require, going with the medical injury becoming a serious social problem. Now., the clause has displayed its tendency of spreading. However, there is no final conclusion about its legal validity in any country's legislation or judicial precedent. Though ardent debates have happened in the practice circle in our country, there is no adequate attention from the theory circle, which is incommensurate to the impending requirement of the practice. In this article, the author gives a research about the legal validity of the exemption clause for medical injury and hopes to put forward a view to fill up the theoretic blank and directing the judicial practice, connecting with the basic civil law theories and using the methods such as deductive reasoning, comparative research and positive analysis.This article is composed of five chapters:The first chapter concerns "the outline of the exemption clause for medical injury". Based on probating the fundamental concepts including "injury" , "medical injury" and "exemption clause" , this chapter demonstrates that the exemption clause for medical injury can be defined as a civil contract clause formed by the medical party and the patient party for absolute or partial exemption of the medical party's liabilities which may occur in the future. Based on analyzing the nature of medical relationship, this chapter demonstrates that the clause is a civil contract clause. Its contents are different from the informed consents and itsforms include the oral and the written. Its rising has the economical reasonability and the jurisprudential basis, but it is comprehensively controlled for its aptness to be abused easily.The second chapter concerns "the taking premises and the determining standards of the legal validity of the exemption clause for medical injury". Beginning with the study of the two meanings of "legal validity", this chapter demonstrates that the legal validity of the exemption clause for medical injury should be understood in wide sense, including the one based on the declaration of will and the other based on the legal provisions. According to the theory of important establishing conditions of juristic act, its taking premises are the formation of this clause and its being contained in the medical contract. According to the theory of important effective conditions of juristic act, its determining standards are the contracting capacity standard, the declaration of will standard and the content standard.The third chapter concerns "the determination of the legal validity of the exemption clause for medical injury according to the contracting capacity standard". This chapter demonstrates that the patient party's contracting subjects of the exemption clause for medical injury include the patient, his legal agent, authorized agent, apparent agent and unauthorized agent. The contracting capacity of the patient and his agents should be determined according to the identification capacity and civil capacity respectively. The clause's legal validity is uncertain when one party has no contracting capacity, while it is valid if the party has cheated on his contracting capacity.The fourth chapter concerns "the determination of the legal validity of the exemption clause for medical injury according to the declaration of will standard". This chapter demonstrates that the elements of the declaration of will of the exemption clause for medical injury are the will of purpose, the will of effect and the act of declaration. A perfect declaration of will means that the will is free, the will is identical with declaration and the declaration of will has arrived or has been understood. Imperfect declarations of will include joking declaration, unilateral untrue declaration, conspiratorial untrue declaration, mistake and declaration by deception or by threat, but the declaration of will which is made when one' difficulty is unlawfully exploited should be excluded.The fifth chapter concerns "the...