Application Of The Law And Legislation Of Medical Malpractice Crime

The pursuit of survival and pain alleviation gave birth to the medical treatment, medical treatments have been researched as a science in order to keep fit and strengthen corporeity. Further more, medical treatment helps human beings improve race, and achieve a more advanced social status. It's undoubtedly that the social is developing rapidly, and the medical crime legislations and judicial activities must follow the social development progress. If the medical crime problems are not solved properly, they will seriously affect the normal order of the medical treatment activities, thereby impede the social advancement.Medical treatment activities have a long history of legislation. China has establishing and improving its legal system since funding. Medical system activities are improving with legal system day by day. Since 1997, Chinese criminal law had put the serious medical accidents into crime in order to ensure and promote the medical activities work smoothly. Because of high risk of medical activities and the lag of the law, there are many arguments in the judicial practice of medical crime, which is a behavior relate to the survival and the development of human being in recent years. The discussions of the analysis and the improvement of the existing laws are becoming increasingly fierce.For the medical malpractice crime, the article is divided into four parts, from the basic concepts related to medical malpractice interpretation, combining ancient and modern medical theory of crime and related to the existing criminal law and other legal norms-based, analysis from the charges, components and the legal punishment status, compare with other research-related crime,propose measures after the probe the configuration of the statutory penalties and made some immature view.This article mainly adopts literature review method, logic analysis and empirical analysis to analyze the basis, value and practical modes of the medical crime. Thereby points out the legislative defects of medical crime. This paper summarizes the current medical crime legislation in the background of the unique Chinese socialist harmonious society and the specific problems that appears in the judicial practice. Under the premises of basic principles of criminal law and the policy of "tempering justice with mercy", the author analyses the present legislative situation, the subjective and objective of medical crime. The author expects to make a little contribution to the study of medical crime.For the arguments about the charges of the medical malpractice crime, the elements of this crime such as the main body of the definition and interpretation of the objective aspect and perfect for the defects of legislative and other issues, the author think about it on the basis of academic views and expect make modest to the medical theory and the judicial practice.I think that the charges of the medical malpractice crime should be identified as "major medical crime"which is more appropriate; medical activities shall include medical beauty, clinic, physical examination and other simple diagnosis, and its serious irresponsible behavior manifestations of medical acts and omissions should be included; From the subject of crime perspective, the debates in theorists is defining the scope of the subject, I believe that medical staff should not include other medical staff and determine their subjective duty should adopt the principle of unity of subjective and objective.Moreover, we believe that medical institution should also be a subject of the crime.In the legislative status, we find that there is a single sentence in this crime, and it is too strict into the sin,so we propose to increase the criminal fine,qualification penalty and applicate flexibly of probation system in judicial practice.For the improprieties and the flaws, the author hopes teachers and scholars point out and correct them, it will help the author improve infinitely in the later study and practice.