Research On Crime Of Medical Accident

Crime of medical accident is a newly-added crime in the Criminal Law of the People's Republic of China taken effect on Oct. 1, 1997. According to the Article 335 of the Criminal Law of the People's Republic of China, "The medical staffs that cause the death of patients or serious injury to patient's health because of their serious irresponsibility for their medical work shall sentenced to no more than three years' imprisonment or detention." It can significantly prevent the medical accidents and punish crime of medical accident. But the researches in crime of medical accident are much shallow in criminal theory at present. There are confusing points and even many blank spots in criminal theory, which are induced by the ambiguity of legislative regulations. So we can not punish crime of medical accidents exactly in practice. Because of the above reason, I regard "Research on Crime of Medical Accident" as the title of my thesis, with the hope that it would helpful to the theoretical study and judicial practice of crime of medical accident in China. This thesis, about 46000 words, consists of three parts: Introduction: It gives a brief review of the study on crime of medical accident and an analysis of problems existed in related legislation and judicature. Main problems worth studying both theoretically and in practice are also suggested in this chapter. The main body of this thesis is composed of four chapters: Chapter One: Analysis of the elements of crime of medical accident. This chapter is the main part of the thesis. Its written mode is same to that of the traditional case study of crime. Based on the analysis of the object, the objective elements, the subject and the subjective elements of crime of medical accidents, the thesis holds that the object of crime of medical accident includes government's administrative order of medical treatment and the right of life and the right of health in Criminal Law; the subject of crime of medical accident only includes the medical staffs who are directly engaged in medical treatment. In the study of the objective elements of crime of medical accidents, analyses are made on the negligence in medical treatment, "serious injury to patient's health" and the identification of criminal causality and our opinion are proposed. In the study of the subjective elements of crime of medical accidents, analyses are mainly made on the content and basis of attention obligation in medical treatment and the judgment of attention ability. In the last section, detailed discussions are made concerning the judgment of the negligence in medical treatment. Chapter Two: The judgment in crime of medical accident. This chapter studies the establishment of the crime of medical accident, and delimits the crime of medical accident from some other ordinary medical accidents. Difference between crime of medical accident and other crimes such as crime of illegal medical treatment are also made in this chapter. Chapter Three: Criminal responsibility for crime of medical accident. This chapter first discusses the special principles and criteria for imposing penalty.Then, suspension of sentence is suggested in the penalty of suspect on the consideration of the specific characteristics in crime of medical accident. Chapter Four: Legislative perfection of crime of medical accident. With a comprehensive analysis of different legislations of crime of medical accident abroad from two perspectives, i.e., facts about a crime and measurement of penalty, the chapter illustrates the shortcomings existed in the legislation of crime of medical accident in the Criminal Law of the People's Republic of China, and further suggests the necessity of amending our legislation for better performance in judicial practice. Couclusion: Summarize the whole thesis.