Research On The Therapeutic Accident Offence

The therapeutic accident offence belongs to the fifth stanza"Endanger Public Hygiene Crime"of sixth chapter in Criminal Code. As the view say offences that infringe the same kind social relationship are arranged in the same chapter, the broken relationship of therapeutic accident offence is the management order of the medical treatment hygiene and the life health power of human body. Many scholars agree with this, so their disputes are located in other elements. They also think therapeutic accident offence should be regulated more clearly, in order to adjust to so many situations in practice that hurt people's hearts and feeling.This thesis chooses four points that arouse much theoretical controversy to discuss. After enumerate a series of viewpoints on the crime body, mental elements and external elements, this thesis think that therapeutic accident offence has its own adjustment scope. We should search the deep meaning behind its words. The typical characteristic of therapeutic accident offence are: (i)it happens between medical personnel and patients; (ii)medical personnel breach an special obligation that grow from his or her occupation; (iii)the legal result is that the patient would die or his health would be ruined seriously. From the three characteristics we can find an abstract concept that is"medical behavior", which has an essence attribute"take medical and treatment as a purpose". Medical business raised from this aims, or the possibility that medical behavior turn to"medical malpractice"will take place, and become bad treatment. We should hold this essence core in our mind when analysis therapeutic accident offence.From the definition of medical behavior, we can easily judge its characteristic as indetermination and high risks, the specialized, decisive quantity and violating. Building our knowledge upon this characteristics helps us comprehension better the happening of medical accident and the basis of penalty responsibility and the original intention of law-making. The thesis will depart four aspects to develop discussion。First, the main body of therapeutic accident offense is medical personnel only, that is who have accepted special education and own hygiene technical knowledge, who have obtained corresponding qualifications to do medical practice by Health Administration Organization's approval, investigate and admitting. The medical personnel must satisfied two conditions in the same time——legal in format and right practice in realty. Because of the strict specialization, technical knowledge and high danger to human body, medical behavior can only be implemented by medical personnel who have trust level. In contrary, other person e.g. administrators and logistic personnel in medical treatment organization will not belong to medical personnel. Although their behavior sometimes will play an important part and make damage to patients, it can not equal medical personnel's responsibility in criminal meaning and should be treated separately.Second, mental element of therapeutic accident offence is negligence."Take medical and therapeutic as the purpose"enunciate that it won't be intention in the medical process (or that will be an intent hurt behavior). As we all know, medical behavior itself has characteristic of indeterminative risk and do harm to people, so it is easy for medical personnel to do harm to the patient who was weak. If we contribute all medical behavior results to offence, it is too severe and not fair to most of medical person. The medical personnel undertake their obligation to save life and help to regain health in law, they must be responsible for their occupation honor, and their ability to make sure right and correct treatment is based on generally objective medical treatment level and such as hygiene laws and regulations etc. On the other hand, the mindset of indirect intention is not constituted mind of medical accident offence. Judge from the property of medical treatment behavior, the not only opposite independence but also mutual relation of understanding and will, and fulfillment and theories which should make the first to have the initiative consideration, we can get this conclusion.Third, objective aspect of therapeutic accident offence is legal result"die or severe ruin body health"due to"severity irresponsible". Also judge from that medical behavior itself has characteristic of higher indeterminative risk and do certain harm to people under freely decisive quantity, we could think the standard of"severity irresponsible"degree is within the range of damage. Because just under the condition that medical behavior exceed the corresponding generally objective medical treatment level and hygiene laws and regulations, it breaks the patients'trust to doctors, and it will turn on"medical malpractice"so as to violating life and health of human body unnecessarily. This thesis think that for the consideration of consistency of affirming a pertaining to crime responsibility, and the aspect of guarantee judicature proceeded independently exercising, it is better to adopt the"severely wounded standard"in criminal law. Fourth and the last, the penalty of therapeutic accident offence are lightly and mollify than other mistake commits crimes. The reason lies in the specialization of medical behavior. In another word, the object of medical treatment work is live but sick body, and different body has its different features. So it is hard to choose the best prefer decision when taking place medical treatment. So only the behavior that has tight relationship with specialization of medical treatment can enjoy the privilege, and the other behaviors must be discriminated and excluded outside the visual field scope of criminal penalty.After discussing and combing the relationship between therapeutic accident offence elements and medical behavior, the third part of thesis put the challenge from practice to write. For long time, administration regulations always play an important part in dealing with medical disputes, and this regulations take"the medical treatment trouble technique authenticates conclusion"as authority basis directly or indirectly, so it exist a long study about the property and legal status of"the medical treatment trouble technique authenticates conclusion". By enumerating and totally talking about the affirmative and opposed opinions, the thesis thinks that in the administration of the medical treatment dispute handles procedure,"medical trouble authenticate"is basis of affirming medical trouble, while in judicial process it is evidence. Then we can go further to the beginning step conceive of the medical treatment trouble authenticates reform, that is to adopt"the double-blind"authenticate system and in the concrete case"a authenticate person-three square choose"system.As the medical treatment knowledge develops each passing day with rapid speed and the modern medical science technical renewal to change generation, in the reality there appears some new circumstances that doubtlessly put forward a challenge to the therapeutic accident offence, producing some new behavior which cannot be contained directly within traditional"medical treatment behavior"concept, such as hairdressing orthopedics, etc.. Thus, the medical treatment behavioral content and postponing outside isn't fixed and unchangeable, but should adjust new situation to descend and request to carry on correspond amendments.By defining again the"medical treatment behavior", though some"diagnosis and treatment purpose"with behavioral medical treatment hairdressings has already not so notable and outstanding under the modern medical science condition, we still can deduce from the applied regulation with the medical science knowledge and the technique standard that it also belongs to the category of"medical treatment behavior". So we can conform to the logic ground brings them into adjustment scope of medical treatment trouble offence.