The Study Of The Crime Of Medical Accident

The crime of medical accident is added to the new criminal law. It means that on the medical treatment, the doctor or the nurse or other medical personnel causes the victims died or makes them been serious injured because of their high irresponsibility. It changed the chaos to fix the criminal liability on the crime of medical accident. However, there are still many shortages here, which bring a lot of matters in the judicatory practice. In order to define these matters, I looked up interrelated data and studied the constitutive elements of the crime of medical accident, the difference of the crime of medical accident, the type of quantity of the crime of medical accident and the concurrent of the crime of medical accident's criminal liability with my tutor's guidance, and gave a little advice. There are five parts in this article: Part one analyses the component of the crime of medical accident through comprehending the medical accident. Integrate the second and the thirtieth-three item of "the statute of settling the medical accident", we can see the medical accident means that in the medical treatment, the medical institutions and its personnel disobey the statutes or the rules of medical management, and cause the sufferers injured. And it doesn't include the injure causing by the special emergency medical treatment, the abnormal disease, the limit of medical technology, the unblamable blood filtering infect, the cure dallied by the sufferers, and the accidental force. There are not many debates of the concept of the crime of medical accident, but the accusation of it. A great number of scholars consider that the accusation should be "the crime of major liability medical accident", because it can embody the legislator's purpose and the characteristic of the crime of medical accident. I agree this idea. But the supreme judicial court has confirmed that the accusation should be "the crime of medical accident", so we should conform to this legal accusation unless the new judicial interpretation giving another amendment. This article discusses the constitutive elements of the crime of medical accident farther. About the object of the crime of medical accident, it firstly analyses the number, the content and the primary and secondary of the object, and conclude that the object of the crime of medical accident is complex, aggresses the normal management of the medical institution and the victims'right of life and health. Thereinto, the normal management of the medical institution is the primary, and the victims'right of life and health is the secondary. Secondly, it analyses the target of the crime of medical accident: victim, and through comparing the victim and the sufferer's meanings, educes the scope of the concept of victim. About the objective elements of the crime of medical accident, this article studies the criminal behavior, criminal consequence and the causation of the criminal behavior and the criminal consequence. The first is the serious irresponsible behavior of the crime of medical accident, including that the behavior is medical treatment, only liability medical accident can constitute the crime, the manner of the behavior can be act or by omission. The second is causing the victims died or makes them been serious injured, including cognizing the scope of the dying and the damage of the victim. The third is the causation of the criminal behavior and the criminal consequence. About the subject of crime, this article cognizes thespecial subject of the crime of medical accident: medical personnel in form and essential, and further analyses whether the other special personnel in medical institution can be the subject of the crime of medical accident. About the subjective factor of the crime of medical accident, this part analyses the actor's careless negligence and the overconfident negligence. Part two partitions the crime of medical accident and the crimeless, and the crime of medical accident and the other crimes. Firstly compares the crime of medical accident and the crimeless, including the medical accident, the unexpected medical damage, the syndrome, and the special emergency medical treatment. Secondly compares the crime of medical accident and the other crimes, including the unlawful medical practice, the crime of negligently causing a serious accident, the crime of neglect of duty, the crime of negligent homicide, and the offense of negligently injurying another seriously. Part three analyses the type of quantity of the crime of medical accident. Because the crime of medical accident is a negligent crime, it only related to the imaginative joinder of offenses and the series offenses of the crime of medical accident. The imaginative joinder of offenses of the crime of medical accident means that the actor's single behavior offends complex number of accusations, one of these accusations is the crime of medical accident. Obey to the principle dealing with the imaginative joinder of offenses, we should choose the single severe punishment, and inflict a heavier punishment for it. The series offenses of the crime of medical accident means that in the near time and location, the actor's several acts continue to causes the victims died or makes them been serious injured. Because it is still an essential single offense, we should inflict a punishment according to the crime of medical...