Study On Medical Service Contract

When health is threatened, people commonly go to hospital, and then the relationship between a doctor and a patient exists. Because of the experimental and harmful to body character in the medical treatment, the patient will face some risk and the dispute about medical treatment is unavoidable. Traditionally, administrative dealing mode is mainly adopted, pursuant the state council's medical treatment accident dealing method. This is bad to protect the patients'legal rights, and to solve the dispute. But with people'sense of rights improving, it has become a trend to solve the dispute on equal states, breaking away from the administrative dealing method above said.Under this situation, our superior court declared some rules on the civil litigation proofs in 2001 to favor the patient on burden of proving. At the same time, the state council declared medical accident dealing provisions to replace the traditional medical accident dealing method, aiming to favor the patient, bring great effects on dispute solving. However, the academic field has no uniform conclusion on the character of the relationship between doctor and patient, rights of and obligations on them and the medical civil obligation, so the dispute of the medical treatment is still an issue of our society.This article, basing on our own law and medical theory and some western countries'medical treatment service theories and practices, in the methods of historical analysis and comparative analysis and criterion analysis, makes an exclusive, general and deep research on the medical service contract. The writer, relying on analyzing the medical service contract development state quo, analyzes the legal character, the formation and termination of this type of contract. At the same time, the writer gives some suggestion by researching the ascribing obligation principle .This article contains five parts.The first part is concerning the summarization of the medical treatment contract. In this part, the writer draws our country's state quo by introducing the history and concept of the medical treatment contract. Inexplicit orientation, obscure rights between doctor and patient, lacking of explicit system prescription, misusing of the rules are our country's state quo. Finally, the writer summarizes the character of compelling forming, abstract doctrine, tool doctrine, legal doctrine and public service doctrine.The second part is concerning the legal character of the medical treatment contract. Following the observing on the relationship between involved parties, the writer comes to the conclusion that the relationship belongs to civil relations. Then, the writer further demonstrates that the contract is a civil contract in the angle of achieving justice.The third part is concerning the legal elements, the formation and termination of the contract. Pursuant the medical accident dealing prescription in 2002, the writer researches the parties, objects, contents , formation and termination of it.The fourth part is concerning the legal character and ascription rule of the medical treatment accident. In the course of cure, it is possible to infringe the body rights because of the trial and dangerous characteristic of medical treatment, and that means the breaching obligation and infringing obligation will combine under such case. The writer accepts the combination doctrine when analyzing the academic research results, and proves the doctrine's rationalization by analyzing the true justice and formal justice. Then, the writer points out that the opportunity should be granted to the victim on deciding whether or not the hurter be exempted. Finally, the writer addresses the negligent and wrong obligation and testifies it in the angle of special character of the medical treatment and realistic meaning of this method.The fifth part is concerning suggestions for legislation. In this part, following analyzing the legislative necessity and studying foreign legislative mode, the writer gives the legislative advice, namely, we must set up a scientific, meeting the world needs and operative statute to adapt the relation between the doctor and patient. when the damage appears, such rule should be ready as gives a clear prescription on the rights of and obligation on involved parties, is based on the equal and willful principles, is an application of just and honesty principles. We should bring into the spirit reimbursement to supple to breach obligation, constitutes the medical risk fund to distribute the risk among society. With these, the patient can be better protected and the medical treatment can be improved more rapidly.