A Juridical Research On Medical Contract

This article makes an analysis on the essence and liability of the medical legal relationship. The author points out some problems about the legislation for the settlement of medical disputes and then puts forward some proposals of her own under the current circumstances.This article consists of three chapters. In the first chapter, after introducing the current situation of the research the author queries several major theories of this subject. The author believes that the medical relationship is not a administrative one, so it shall not be governed by the law for protection of consumers' rights as well as the traditional torts law. The author emphasizes and verifies the specialties of the medical relationship and then points out the medical relationship in essence is a medical contract, a kind of mixed contract. It differ from other commercial contracts in several aspects, including the establishment, content and demurrer.The second chapter focuses on the liability of medical contract. The author makes an introduction of the general theory about concurrent liability and compares tort liability with contractual liability. The author believes that if a personal damage caused by physicians fault during the process of medical treatment, then the behavior of the physicians constitute not only a breach of contract, but also a tort on the patient's right of life and health. The patient, under such circumstances, has two rights of claim. One is to claim the liability for breach of contract, the other is to claim the liability for tort. The author holds that it should be allowed for the victim to make a choice between the foresaid two rights of claim when he brought a lawsuit to a court. The third chapter concerns some problems about the legislation for the settlement of medical disputes and some proposals related.The author points out that though it modified a lot to the old《measures of the settlement of medical disputes》, the new《regulations on the settlement of medical disputes》is still a administrative regulation, its legal effect is still in a comparatively low level. So the author proposes to enact a special and independent 《medical affairs law》, which shall be a combination of public law and private law, substantial law and procedure law. This article makes full use of domestic and abroad existing research achievements and puts forward some creative opinions in hope of being beneficiary to the juridical practice of medical disputes.These creative opinions in this article are as follows:Though medical relationship may include medical contract, management without legal or contractual obligation and compulsive medical treatment, it shall mostly be classified into medical contract. Both management without legal or contractual obligation and compulsive medical treatment occurred in medical treatment would revert to contractual relationship after an acceptance made.Medical contract is a mixed contract, which cannot be adjusted by any single law or administrative regulation. A medical contract made in purpose of accomplishment of a operation or recovery of the patient shall be deemed as a work contract; a contract concerning physicians diagnosis and treat patients shall be deemed as a mixed contract of non-typical service contract and purchase and sale contract; a hospitalization contract is very complex, which shall be deemed as a mixed contract of non-typical service contract, rent contract, purchase and sale contract and employment contract; a contract concerning an experimental treatment is a mixed contract of non-typical service contract and donation contract; health examination contract shall be deem as a non-typical service contract in that there is no content of medical treatment.Classified medical contract as a kind of civil contract. The author urges to establish a comprehensive system to prevent medical disputes, to restore civil law the characteristic of right-oriented law, giving more respect to victim's right of dispose.Proposes that there is no need to c...