Research On Specification Of Medical Contract

The dissertation starts on several basic conceptions in medical practice. It separated medical affair legal relations, medical legal relation (medical relation), and medical contract relations, and some other essential and basic conceptions in medical practice area. And it defined Medical Malpractice in our country, that is, Negligence, misconduct, lack of ordinary skill, or a breach of duty in the performance of service in medicine resulting in injury or loss. It means a sort of improper behavior by the doctors—include but not limited to the breach of legal duty and promissory duty by fault.The second chapter starts on Medical Malpractice. Based on the analysis of the legal position of two kinds of medical institutions, it clarified the medical conflictions in our country, and come to the conclusion that the malpractice of medical institutions—never mind its non-profitability—should be at least nonexclusively regulated by civil law.However, most of this second part focused on the position of medical malpractice in civil law---whether should it be adjusted by contract law or tort law. It used approach of comparative law, positive law, and logic. After considered the popular "medical malpractice in tort", it gives out the three connatural bugs of the tortuous regulation of medical malpractice. The first one is, the problem of onus probandi; the second one is, the problem of the cost of lawsuit; and the third one, the problem of the achievement of the preventative function of law. Whereafter, it expatiated the theory of non-property damage in contract law, and this farther justified the basis of the medical contract. The conclusion of the second chapter found a primary basis of the proposal thereafter of categorize of medical contract. In the third part,the author discusses the features of medical contracts, and then analyzes nature of medical contract—the status of medical contract in contract law. And then the author analyzes the logic basis of the categorization of medical contract in the Specific Provisions of our contract law. The main reason for that is, the standard of categorization of our actual contract law do not unify. Some classification based on the diversity of the right and duty of contract, just like the classification of gift contracts and contracts of hired works and so on; and some based on difference of the industry referred in contract, just like the classification of transport contracts and brokerage contracts and so on. The conclusion is: the categorization of medical contract in our contract law does not break the actual system of it.In the forth part, the author mainly discusses several elements of medical contracts, which includes how medical contracts come into existence and relevant problems of compulsory concluding responsibilities and formatted provisions, and analyzed the subject of medical contracts; secondly, based on the separation of absolute right and relative right of the actors, the author followed a new method in researching the rights and duties of medical contractors. In the last, the author chooses approach of multiple imputation principle when researching the constitutive factors and the principle of imputation for medical contract: that is, in circumstances that the doctor has an obligation of result, we should apply commission of strict liability, otherwise, when in circumstances that the doctor has an obligation of behavior, we should apply commission of fault liability. What's more, this multiple imputation theory does not conflict with the actual logic system of "Contract Law", for that, in the Specific Provisions part there are several typical contracts which apply the principle of non-strict imputation.Farther on, the dissertation did a research on the sensitive problem of mental damage compensation with a case in UK, and came to an conclusion that, in some specific contracts that one party supply a service which is tightly related to the other party's mental or body interest, the contract law should endue the victim the right...