Research On Medical Criminal Error

Various countries have greate differences on incident of malpractice's qualitative punishment and so on .The ordinary legal system countries mainly solve the medical dispute or incident of malpractice's processing through the civil compensation way, and very few of criminal involvement. The mainland legal system countries solve the medical dispute also by the civil method primarily, but also can use criminal involvement,although it usually be by the service error crime theory, does not have the special incident of malpractice charge, but our country in 1997 "Criminal law" legislated alone to the incident of malpractice crime, this law 335th stipulation:"medical personnel, of serious irresponsible, cause the patients to die or cause serious damage to patients'physically healthy , imposing the set term of imprisonment below 3 years or imprisons."For all of this, partial questions of incident of malpractice crime's still have great dispute in the theory and the practice at present. This article mainly has carried on the preliminary discussion from its subjective aspect - - medical error.This article divides into four chapters altogether:The first chapter has carried on the discussion to the relations between error theory's development and the medical error. It divides into four parts:In the first place , it introduces the old error theory briefly. The old error theory thought the error only as the responsibility important document in the crime constitution's status; The error responsibility basis picked the psychological fact theory; By result insignificant achievement illegal judgment standard; The content of attention duty in the error lies in violates the result foresight duty. In the second place, it introduced briefly on the new error theory .The new error theory revealed the error exist not only in the responsibility domain, but also in the crime constitution responsibility domain and illegal stage ; The error responsibility basis picked the standard to violate said; By behavior insignificant achievement illegal judgment standard; The key places of recognizing the attention duty in the error should be paid to the duty of the result evasion .In the third place , it introduced further new error theory briefly. The new error theory avoided the attention duty of the result by the premise that the author has the concrete result foresight possibility , but the further new error theory revealed that it was enough so long as the result foresight voluntarily has deterrent feeling to the occurrence of the result.Finally,it obtained the conclusion through the analysis on the relations of above error theory and the medical error ,and on the medical error's influence : that is the old error theory will cause absolute liability in fact easyly, but the further new error theory also has the tendency of causing the reckless crime magnification, therefore the new error theory recognizes reasonably compared to regarding the medical error.The second chapter analyzes the medical error's integrant part ,the attention duty and attention ability .Altogether it divides into two parts:Firstly, It discussed about the medical error's attention duty. First, the content of attention duty. Through the comparison of Chinese and foreign criminal law theories about the content of attention duty ,the author approves of the logically coherent argument, namely includes the result foresight duty and the result evasion duty. In the medical error,the result of the result foresight duty is the concrete result or the general result?The author thought that should be the concrete result, but this concrete result also has the relativity. The result evasion duty of the medical error including the duty of do not implement the risk behaviour before the behavior , the duty of taking adequate measures to prevent the harm result before the behavior,the duty of maintain cautious attitude in the implementation risk behaviour's process,the duty of adopting measure prevents it to occur,when the risk behaviour soon creates the harm result occurs. Second, the origin of attention duty. The author carry on the elaboration from four aspects: duty on law attention, duty on custom or the common sense attention, duty based on the advance behavior, duty based on respected other people's law profit .Secondly,it has carried on the discussion about medical error's in attention ability. The mainland legal system have four theories about the judgment of violates the attention ability, namely subjectivism, the objectivism, compromised theory and the subjective and objective unification theory. The author thought it should pick subjectivism regarding to the ordinary negligence, but should pick the objectivism to the medical error.The third chapter has carried on the discussion to the medical error's legal responsibility. Altogether,it divides into four parts.Firstly, it carried on the analysis of the service error's punishment basis from the subjective and objective aspects .The medical error belonged to the model service error, and the service error's punishment basis was certainly suitable to it.Next ,it analyzed the service error's punishment principle. In the first part ,it analyzed the punishment principle of overseas to the service error ,and enumerated the vertical legal regulations of overseas carried on the aggravation punishment to the service error. It also elaborated the reason of aggravation punishment to the service error. In the second par, it analyzed the punishment principle to the service error in our country, and enumerated the example that the present criminal law punish the service error lesser than ordinary negligence . It also analyzed the reason why our country punished leniently to the service error. In the third place , It elaborated author's viewpoint that it should be aggravation punished when deals with the service error.More over, as some scholars approving in the view of aggravation punishment to the service error, but actually thought that the medical error is the exception, the author thought the medical error have a higher risk compares to other service error, and can not to be the punishment basis to its mitigated .Therefore, it should also aggravate the punishment to the medical error.Finally the author put forward proposals to the incident of malpractice crime's legal punishment establishment. The author suggested squaring the value orientation to the medical service negligent act carries on the criminal punishment, and aggravating the punishment to corresponding crime's behavior based on clearly limits to the medical service negligent act crime and non-crime.The fourth chapter has carried on the discussion to the the questions paid attention of medical error recognized. It divides into four parts.Firstly,it has discussed the relations between the allowed dangerous and the medical error. Through the analysis on the background and theory foundation, the connotation , the status in the error of the allowed dangerous theory, we can see the allowed dangerous theory has assigned the danger between medical personnel and the social efficiency, and thus absolution medical personnel's part attention duty,and limit medical service error's establishment.Next,it has discussed the relations between faith principle and the medical error. It discussed the producing foundation of the faith principle concept, the practices in our country , and the use of the faith principle in the medical error . The author believed that the faith principle is also one kind of attention duty assignment principle,and it assigns the attention duty between the author and the victim or the third person. The faith principle have being used in the transportation of our country,and it will be definitely suitable for the medical domain,by analysing the starting point of setting up the faith principle, .More over,it discussed the relations between surmounting undertaking error and the medical error . Discussed the basis of surmounting undertaking error taking the legal responsibility from two angles of morality and justice responsibility and the community responsibility .Finally,it has discussed the relations between emergency case and the medical error. Whether and how does the emergency case affect the establishment of medical error ? Through comparisons on three theories, the author thinks in extremely exceptional cases ,the emergency risks approach very suddenly, and the author was unable to foresee ,so appeared extremely flustered, and, thus caused its reaction capacity to lose completely in short time.Only in this time could it anti- actually the neglect duty of harm result.